author:
COOKS, Judge.
      AMY, J., PICKETT, J.,

text:
    Collette Josey COVINGTON and Jade Covington v. McNEESE STATE UNIVERSITY and the Board of Supervisors for the University of Louisiana System.
    No. 11-1077.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 2012.

      James D. “Buddy” Caldwell, Attorney General, J. Michael Veron, J. Rock Palermo, Alonzo P. Wilson, Special Assistants Attorney General, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, LA, for Defendants/Appellants, McNeese State University and the Board of Supervisors for the University of Louisiana System.
    Seth Hopkins, Houston, TX, James Hopkins, Sulphur, LA, Lee A. Archer, Lake Charles, LA, for Plaintiffs/Appellees, Col-lette Josey Covington and Jade Covington.
    Neil Hahn, Director of Litigation Systems Advocacy, Lafayette, LA, for Amicus Curiae, The Advocacy Center.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

_JjThis appeal arises from the trial court’s judgment rendering an award for attorney-fees and costs to the prevailing attorneys in an action under the Americans with Disabilities Act (ADA) and the comparable laws of Louisiana.

FACTS AND PROCEDURAL HISTORY

The facts of this case which served as the genesis of the present motion for attorney fees were previously set out by this court in Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La.3/6/09), 3 So.3d 491, as follows:

On January 31, 2001, plaintiff, Collette Covington (hereinafter “Covington”), was a wheelchair-bound student at McNeese State University (hereinafter “McNeese”) with a history of a seizure disorder. On that date, she attended class on campus in Farrar Hall. Cov-ington then proceeded to the Holbrook Student Union (hereinafter “the Old Ranch”). There she was to meet at the designated location for her transportation provided by the Louisiana Vocational Rehabilitation Service.
While waiting, Covington needed to use the restroom and proceeded to go into the Old Ranch. The doorway to the restroom that Covington attempted to use, at its smallest point, measured 29 5/8 inches in width, while the standards for ADA compliance is 32 inches. Cov-ington alleged that while she was unable to enter into the restroom, she suffered the humiliation of urinating on herself while unsuccessfully trying to transport from her wheelchair through the narrow, non-complaint restroom stall door. Covington alleged that she then was injured while trying to gain sufficient leverage to open the door to exit the restroom.
After lengthy discovery, it was admitted by McNeese that not a single women’s restroom in the Old Ranch is ADA compliant. Further, McNeese admitted that it did not have a transition plan in writing as required by the ADA.

Covington filed suit against McNeese alleging violations of Title II of the Americans with Disabilities Act (ADA), and the comparable Louisiana laws specifically prohibiting discrimination against the handicapped by educational institutions. She further alleged in her petition that she was injured while trying to use and exit a non-compliant restroom on the McNeese campus. She asserted the Lnon-compliant restroom violated both the provisions of Title II of the ADA and La.R.S. 46:2254 which mandates “[A]n educational institution shall not: (1) Discriminate in any manner in the full utilization of the institution ...” On a motion for summary judgment in 2007, the district court found Cov-ington was entitled to a judgment as a matter of law on the following issues: (1) McNeese was not immune from suit under U.S. Const, amend. XI; (2) Covington was disabled as defined by the ADA at the time of the incident giving rise to the lawsuit; and (3) McNeese discriminated against her based on her disability. Despite representations to the contrary, McNeese has judicially admitted that Plaintiffs actions “have and will result in substantial changes both at the facilities at McNeese and McNeese’s policies for the disabled.” The parties stipulated in the injunction signed in this matter as follows:

The parties stipulate that there has been an alteration in the legal relationship of the parties, thus entitling that Covington is the prevailing party under the ADA with standing to seek attorney’s fees in this suit. During the pendency of this suit Covington filed a grievance with the U.S. Department of Justice. And, as a result, the defendants are in the process of negotiating a settlement under which the State of Louisiana and defendants will expend a substantial sum of money to bring the McNeese campus into compliance with the ADA for the benefit of Covington and other disabled students. The parties stipulate that Covington’s actions have and will result in substantial changes both to the facilities at McNeese and McNeese’s policies for the disabled.

On appeal, we affirmed the decision of the district court, stating we could not “fathom that McNeese felt no need, regardless of whether it was required by law, to upgrade a single women’s restroom into ADA compliance in a building that houses, inter alia, the two main student cafeterias on campus, offices for student government and activities, and a state-of-the-art computer laboratory.” Id. at 687. We also noted McNeese’s refusal to comply with the federal mandate to provide handicapped accessibility was “reminiscent of the intolerance of the past.” Id. at 687. As Judge John D. Saunders of this court astutely wrote and cautioned:

|sWe had hoped that the days where a court has to step in to ensure that people were treated equally under the laws of this country were gone. Yet, still, McNeese is emboldened enough to bring such a case to an appellate court where a published, written opinion will forever memorialize its discrimination against this country’s disabled citizens. It is hoped that McNeese will reassess its attitude toward its disabled students. It is also hoped that McNeese will prepare and publish a transition plan as required by the ADA.

Id. at 687-88.

This court also noted that in the previous appeal, Tim Delaney, Director of Services for Students with Disabilities, who was assigned by McNeese to deal with disabled students, candidly admitted he “regarded Covington ‘as having such impairment,’” but McNeese persisted in its discriminatory behavior. This prompted our court to state in that opinion “[h]ad Covington brought an action for frivolous appeal on this particular issue, it would seem that this court would have granted such a request.” Id. at 678-79. McNeese’s request for rehearing with this court, and its writ application to the Louisiana Supreme Court, were denied.

McNeese eventually settled with Cov-ington, but took another 895 days from the time it exhausted all efforts to overturn the summary judgment to formulate and disseminate an accommodation plan for the disabled on its campus. McNeese’s response was slow in coming, even when faced with a United States Department of Justice investigation which focused on Covington’s complaint and the multitude of willful violations of the ADA across its campus. Ultimately, McNeese’s final plan addressed some 15,000 ADA violations on its campus.

The motion for attorney fees, which is the subject of the present appeal, was filed by six attorneys who worked on Coving-ton’s behalf. Covington’s lead counsel was Seth Hopkins. He began his involvement with the case shortly after graduating from law school in 1999. For the next ten years, young Hopkins worked on Coving-ton’s case, without any compensation. Hopkins testified, to support himself while pursuing Covington’s case, he accepted employment as a Rstaff attorney at a Houston, Texas law firm. He testified his continued involvement with Covington’s case kept him from accepting more lucrative work. Meanwhile, McNeese’s attorneys, more than twelve in all, received compensation all along the way for their services as the case dragged along.

The trial court noted Hopkins “took a personal interest in the case” and “passionately pursued the interests of his clients, and immersed himself in ADA law in order to provide the most effective representation he possibly could.” He relentlessly pursued the Covington case and ultimately prevailed. In the words of Hopkins:

As the months turned to years, I saw Collette’s despair grow, and I was moved by her powerlessness and her passion about getting a degree in early childhood education. I also realized that McNeese was an important part of the community, was the largest employer in the area, had an enthusiastic alumni and supporters, lots of influence and the almost unlimited legal financial resources of the government.
I was ... forced to face some of the Attorney General’s most experienced attorneys 30 years my senior, to date, 12 attorneys on the other side.
Unlike those who argued in favor of McNeese’s discrimination, plaintiffs counsel have gone unpaid for ten years. Hopkins and the other five plaintiffs

attorneys submitted timesheets documenting the time spent on the Covington litigation. The attorneys also presented affidavits from four expert attorneys, including three local attorneys who previously handled ADA cases in the Lake Charles area and one national expert. These experts indicated it was reasonable to expect lead counsel to expend 6,500 hours in advancing Covington’s claim, but Seth Hopkins points out he only requested 88% (5,489.5 hours) of that amount. Hopkins voluntarily reduced his hours covering ten years of dedicated representation to allow for discrepancies in time records which made it appear he had billed for more than twenty-four hours in a day. The claimed hours also do not include numerous hours of telephone conversations with opposing counsel which were too burdensome to constantly | ¿keep track nor the six days spent at the fee application hearing. Additionally, Covington’s attorneys filed nearly 700 pages of briefs and 7,500 pages of exhibits. This was well in excess of the 200 pages of briefs and 500 pages of exhibits introduced by McNeese’s attorneys. The present appeal record includes 45 volumes containing 11,000 pages.

Covington also requested an upward adjustment — enhancement—of the Lodestar hourly rate based on the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), such as the novelty or difficulty of a claim, the time and labor required to litigate the claim, and the extent to which taking the case hindered the attorney’s acceptance of other work.

During the fee hearing, McNeese presented the live testimony of only one expert, whose testimony was partially stricken from the record without objection. It asked few questions during the hearing designed to test the accuracy of each time entry made by plaintiffs’ attorneys, electing instead to take a shot-gun approach blasting the whole fee application and assailing Hopkins’ credibility — just as it had done for years to derail Covington’s ADA and personal injury claims. These attacks, like the current ones observed from the record, required Hopkins to spend countless hours defending his integrity as a person and as a practicing member of the Bar. McNeese referred to young Hopkins as slow, greedy, and unethical and claimed he was obsessive, incompetent, and dishonest. It also accused him of fraud and claimed Hopkins had committed a felony and should be disbarred. Disguised as innocent discovery efforts, McNeese sought Hopkins’ financial records as well as his health records. It investigated his friends and caused his former employer, a Texas law firm, to file and obtain a protective order to prevent McNeese from gaining carte blanche access to the firm’s private records. McNeese even resorted to showing the trial judge a cartoon depicting young Hopkins as a liar.

IfiAt the close of the fee hearing, the trial court found Hopkins’ testimony credible, and found the documents the attorneys presented supporting the hours claimed were neither exaggerated nor unexpected. In calculating the attorney fee award, the trial court noted it was following the approach used by the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), which used the “lodestar” method, i.e., taking the number of hours the attorneys and their employees worked multiplied by the hourly rates prevailing in the community.

First, the trial court fixed the reasonable hourly rate in this ease at $240.00. He then denied all the attorneys’ request for an enhancement of the assigned reasonable hourly rate, stating the following:

The Court recognizes that McNeese was disdainfully defensive of its unacceptable condition, in spite of a federal mandate to make its facilities accessible to the disabled. The Court further recognizes the militant defense taken by Defendant throughout this litigation in the face of its obvious error. The number of hours which Plaintiffs counsel was required to expend prosecuting this case has certainly been increased by defendant’s constant attempts to prolong this litigation, and this will be taken into account in the lodestar determination of the fee awarded; however, it cannot be ignored that McNeese is a publicly funded university. Thus, those responsible for the seemingly deliberate disregard for the responsibilities of McNeese will not bear the burden of any sanction imposed upon this state university; it will instead be borne by Louisiana taxpayers. For this reason, the Court declines to enhance the award of attorneys’ fees based upon the conduct of the defendant.
Plaintiff also requests an enhancement based upon the twelve Johnson factors; however, plaintiff relied primarily on the following four: 1) time and labor required for the litigation; 2) the customary fee; 3) the amount involved and the results obtained; and 4) the experience, reputation and ability of counsel. Time and labor required to litigate the action is clearly taken into account in the lodestar calculation, as the number of hours reasonably expended is one of the two named factors in lodestar. Clearly, the “customary fee” is also subsumed by the lodestar as the reasonable fee is the second named lodestar factor. The experience, reputation and ability of counsel is also very evidently taken into account in the lodestar calculation, as it is an important factor in the determination of a reasonable hourly rate. Accordingly, the Court does not find these factors to be an appropriate basis for enhancing the lodestar award.
[ 7Plaintiff s third argument is certainly the most convincing of the four. Plaintiff did achieve substantial success through this litigation — having ultimately effected a $13.8 million renovation of the campus of McNeese State University to finally bring it into com- plicmce with the ADA. However, the exception of the rule against enhancement is strictly limited to “rare and exceptional circumstances”, and the Court believes it important to note that the Supreme Court has never sustained an enhancement of a lodestar award for performance. Perdue v. Kenny A. [— U.S. -], 130 S.Ct. 1662, 1667 [176 L.Ed.2d 494] (2010). Accordingly, the Court declines to grant Plaintiffs request for an enhancement of the attorney’s fee award as calculated by the lodestar method.

(Emphasis added.)

The trial court accepted, without adjustments, the time sheets filed by five of Covington’s attorneys and rendered the following fee awards:

James Hopkins, 624.7 hours at $240.00 per, for a fee of $149,928.00.
James Doyle, 28.6 hours at $240.00 per, for a fee of $6,864.00.
Heath Dorsey, 76.85 hours at $240.00 per, for a fee of $18,444.00.
Robert Breen, 114.9 hours at $240.00 per, for a fee of $27,576.00.
Lee Archer, 147.25 hours at $240.00 per, for a fee of $35,340.00.

McNeese did not object to the time submitted by these five attorneys and does not challenge the reasonableness of their hours on appeal. It does, however, take issue with the trial court’s decision to calculate the fees based on a finding that $240.00 is the reasonable hourly rate in the community. Thus, it appeals the awards to these five attorneys solely on this basis.

Turning to Seth Hopkins’ fee application, the trial court concluded it “was appropriate to reduce Hopkins’ time by 20% in order to arrive at a reasonable number of hours expended for purposes of a lodestar calculation.” The trial court gave the following reasons for this reduction:

The Court does recognize that Hopkins’ initial inexperience both with ADA law and as an attorney, having begun this litigation less than two years out of law school, likely contributed to the number of hours spent researching and preparing pleadings, memoranda and ■ other case materials. While certainly not intending to discourage diligence or attention to detail, the Court finds that, had an attorney |smore experienced in ADA law been lead counsel in this case, significantly fewer hours would have been billed.

As a result, the trial court reduced Hopkins’ requested number of hours from 5.489.5 to 4,391.6 hours. This, when multiplied by the reasonable hourly rate of $240.00, rendered an attorney fee award to Seth Hopkins of $1,053,984.00. Covington also was awarded expenses in the amount of $41,570.47 and all costs of the litigation were assessed to McNeese.

McNeese complains the district court (1) erred in failing to reject “in its entirety ” Hopkins’ application for attorneys’ fees as “excessive, unreasonable, and incredible”; (2) erred in failing to “provide a reasonably specific explanation as to ’how it determined that $240 is the prevailing hourly rate in the Lake Charles community”; and (3) erred in relying on “the prevailing hourly rates from communities other than the Lake Charles community.” (Emphasis added.)

Covington’s attorneys answered McNeese’s appeal and also assign error to the assessment of attorney fees. They contend the trial court abused its discretion in reducing Seth Hopkins’ billable hours by 20%, from 5,489.5 hours to 4.391.6 hours. They also argue the trial court abused its discretion in not awarding $265.00 as the reasonable hourly attorney’s fee rate and in failing to enhance this rate. Further, they request that this court award sanctions against McNeese for a frivolous appeal.

ANALYSIS

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., was passed in 1990 to remedy discrimination against persons with disabilities. Without enforcement, the ADA, and any other civil rights law, would have little practical effect. To that end, congress has enacted fee-shifting statutes, such as 42 U.S.C. § 12205, the attorney fee provision in the ADA, to encourage individuals injured by discriminatory practices to seek judicial redress, and “to ensure that the costs of 1 n'violating civil rights laws [are] more fully borne by the violators, not the victims.” Newman v. Piggie Park Enter., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (Emphasis added). Thus, when a plaintiff brings a civil rights action and prevails, he is acting as a “private attorney general, vindicating a policy that Congress considered of the highest priority.” Id. at 402, 88 S.Ct. 964. Although awarding attorney fees in these contexts is discretionary, it is highly encouraged as a policy to provide incentive for attorneys to take on cases that may cure or deter constitutional and statutory violations yet not engender large damages awards. Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

Furthermore, once a plaintiff is a prevailing party, an award of attorney fees is virtually obligatory. In Barrios v. California Interscholastic Federation, 277 F.3d 1128, 1134 (9th Cir.2002), the federal court, quoting the United States Supreme Court in Hensley, 461 U.S. 424, 103 S.Ct. 1933, noted “in civil rights cases, the district court’s discretion is limited. A prevailing party under the ADA ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” We cannot imagine a more compelling case than the one before us in which Plaintiffs attorneys should be fully compensated.

I. Did the Trial Court Err in Accepting Seth Hopkins’ Fee Application?

McNeese contends the trial court erred in failing to reject in its entirety Seth Hopkins’ application for attorney fees. Although acknowledging Congress has authorized the judiciary to deviate from the general rule that each party bear its own attorney fees and costs by shifting fees from one party to another, McNeese contends in this case Hopkins has lost his right to an award of attorney fees. Essentially, McNeese argues Hopkins should receive no attorney fees because his original fee application did not contain fully accurate and detailed time entries from the outset, with no unnecessary or unreasonable hours. McNeese states in brief that “a fee application that contains exaggerated time entries must be rejected |1ftto discourage greedy lawyers from seeking inflated fees” and that “fee applications with exaggerated time entries cannot simply be reduced, but must be rejected in their entirety.”

To support its position, McNeese directs our attention to several cases which it argues compel the result it now demands. McNeese cites Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir.1980), which involved a lawyer who demanded 800 hours of billable time for preparation of a six-page complaint on “a simple case which required little legal skill;” and Lewis v. Kendrick, 944 F.2d 949 (1st Cir.1991), in which a plaintiff prevailed only on a minor portion of one claim, and the attorney failed to separate fees for factually separate claims. It also references Fair Housing Council v. Landow, 999 F.2d 92, 97 (4th Cir.1993), and points to the court’s denial of a fee request in its entirety citing “woefully inadequate time records, [and a] failure to make a good faith effort to exclude fees attributable to unsuccessful claims,” which led the court to conclude the “fee petition was so outrageously excessive it shocked the conscience of the court.” Finally, McNeese cites Scham v. District Courts Trying Criminal Cases, 148 F.3d 554 (5th Cir.1998). In that case, a lawyer’s motion for attorney fees seeking approximately $624,000.00 was denied in its entirety by the district court. Scham subsequently filed a motion for reconsideration seeking over $20 million in fees, which also was denied. The Fifth Circuit in Scham affirmed the outright denial of fees, noting “[djuring the short, one-year pendency of this case, discovery was limited, and there were no meetings of the parties or attorneys, no settlement negotiations, no mediation, no court appearances, and no trial.” Id. at 557. The court specifically held the amount of fees sought by the attorney was “so clearly excessive that it ‘shocks the conscience’ of the court.” Id. It also set forth what is required to deny an award of attorney fees in their entirety:

|nWe conclude there are special circumstances that justify the district court’s denial of fees in this case. Other circuits have held that “a district court may, in its discretion, deny a request for attorneys’ fees in its entirety when the request, submitted pursuant to 42 U.S.C.1988, is so excessive it ‘shock[s] the conscience of the court.’ ” (Citing Fair Housing Council v. Landow, 999 F.2d 92, 96 (4th Cir.1993) (quoting Sun Publ’g Co. v. Mecklenburg News, Inc., 823 F.2d 818, 819 (4th Cir.1987)); see also Lewis v. Kendrick, 944 F.2d 949, 957-58 (1st Cir.1991); Brown v. Stacker, 612 F.2d 1057, 1059 (7th Cir.1980)).

Id. at 557.

We further note the “shock the conscience” theory in Scham was augmented by the “catalyst theory” in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Other than these theories, we know of none that would move us to reject an award of fees in this case in entirety.

The cases cited by McNeese are not factually on par with the present one. The fee application submitted by Hopkins does not shock the conscience of this Court. The same cannot be said for McNeese’s behavior throughout this litigation. McNeese neither urges nor could it rely on the “catalyst theory,” which “posits that a plaintiff is a ‘prevailing party if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 600, 121 S.Ct. 1835. Nothing McNeese has done here in response to the claims made has been voluntary.

Hopkins offered a reasonable explanation in response to McNeese’s pointing out that on a few occasions his billing record reflected more than twenty-four hours in a work day. Hopkins also offered testimony and evidence to demonstrate that on these occasions he worked into the “wee” hours of the morning from the night before and understandably slotted the time on the wrong date. McNeese offered nothing to rebut his reasonable explanation, except defense counsel’s argument buttressed by insinuations followed by verbal cries of dishonesty and like attacks on young Hopkins’ character. Additionally, in a demonstration of good faith and |12fair dealing, Hopkins voluntarily redacted the specific line items flagged by the defense, though he had no doubt the hours were expended, and he expressed a willingness to do more if McNeese would abandon its “not a dime” approach. The amount of time claimed by Hopkins was further supported by the affidavits of four experts who all testified that a reasonable time amount for such litigation would be approximately 6,500 hours. Hopkins only requested 88% (5,489.5 hours) of that amount, adjusting for inadvertent errors which may have occurred and understandably anticipating the battle to come as McNeese maneuvered to avoid any payment. Despite Hopkins’ good faith efforts to make a significant downward adjustment in the hours claimed, McNeese continues to discharge torpedoes at his application. As Hopkins so eloquently stated in his opening remarks to the trial court at the hearing on his attorney fee application:

A reasonable defendant found to have discriminated against this country’s citizens with a Third Circuit opinion like the one that we got, might conclude that opposing counsel should have earned some fees. But, McNeese believes that ten years worth of work in this case should be worth absolutely nothing to their opponents. That is the kind of hard-line approach that we’ve had to deal with from a $4,000.00 bathroom to a 14 million dollar Compliance Decree, and now with attorney’s fees it’s the same way. We have to start at zero because that’s all that will be conceded.

McNeese’s defense tactics have served only to increase the attorneys’ fee bill it complains has been padded. When questioned on appeal as to the wisdom of its stance, McNeese did not equivocate in repeating it. Eventually, after some common sense pressing by the court, McNeese begrudgingly posed, in the event this court was inclined to affirm an award in Hopkins’ favor, it should not exceed a small contingency percentage of Covington’s settlement proceeds — even this amount it insists is undeserved. It remained resolute that the law forbids us from doing more. The only thing the law forbids is acceptance of McNeese’s position. See City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986).

113McNeese fails to seriously give weight to the wealth of jurisprudence favoring a just and reasonable award for the work performed by all the attorneys in this case for many years. Suffice it to say here, in final support of our rejection of McNeese’s position, the jurisprudence speaks loudly against it. We take brief opportunity to selectively reference only a few cases avoiding the unnecessary practice of stringing citations — see Perdue v. Kenny A., — U.S. —, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010); Hensley v. Eckerhart, 461 U.S. 424,103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Liger v. New Orleans Hornets NBA Ltd. Partnership, 2010 WL 3952006 (E.D.La.2010); Oreck Direct v. Dyson, Inc., 2009 WL 1649503 (E.D.La.2009).

II. The Trial Court’s Reduction of Seth Hopkins ’ Hours.

Covington contends on appeal that the trial court erred in reducing the number of hours earned by Seth Hopkins by 20%, from 5,489.5 to 4391.6 hours. The trial court found this reduction warranted due to Seth Hopkins’ “initial inexperience both with ADA law and as an attorney ... [which] likely contributed to the number of hours spent researching and preparing pleadings, memoranda and other case materials.” The trial court believed “had an attorney more experienced in ADA law been lead counsel in this case, significantly fewer hours would have been billed.”

Initially, we note, in reducing the billable hours requested by Seth Hopkins, the trial court did not point to any inaccurate or exaggerated entries in the time sheets provided. The sole reason given for the 20% reduction in the requested billable hours was Seth Hopkins’ supposed inexperience with ADA law and as a lawyer in general. Our careful review of this record — comprising 45 volumes containing 11, 000 pages — required us to exhaust an exceptional number of judicial work hours. In doing so, we are firmly convinced Hopkins presented a well-orchestrated case worthy of emulation by the most seasoned attorneys. By the time Hopkins appeared at the motion for summary judgment hearing, he had been 114battling his opponents, who steadfastly defended their discriminatory behavior, for six years. At that time the record comprised some twenty-five volumes with over 500 pages of original briefs by Plaintiffs’ counsel and 7,500 pages of exhibits. The summary judgment and motion for injunctive relief included almost 1,000 pages and literally a truckload of documents. The case became so voluminous that Hopkins had to move out of an apartment into a house so as to dedicate an entire floor to its safekeeping.

Against the odds, Hopkins filed a well-documented and thorough motion for summary judgment which avoided a longer, more protracted, and more expensive litigation to bring the matter to an end. We note that McNeese, though asserting now that the attorney fees for disposing of this matter on summary judgment are excessive, vehemently urged at the motion for summary judgment that the case needed far more time and development and should not be disposed of on summary judgment. McNeese argued that even more time should be spent on this litigation and true to that sentiment, it has exhaustively stayed the course.

McNeese’s unyielding defense, throughout these proceedings, has substantially contributed to the voluminous record now before us. This Court specifically noted McNeese advanced a hypothesis that Cov-ington was faking her disability, a hypothesis which was “unfathomable ” and “completely unsupported by evidence in the record.” (Emphasis added.) The trial court specifically referenced McNeese’s “militant defense” taken “throughout this litigation.” It also stated “[t]he number of hours which Plaintiffs counsel was required to expend prosecuting this case has certainly been increased by [Djefendant’s constant attempts to prolong this litigation.” There simply is no evidence that the number of hours claimed by Hopkins for his work in this case was increased because of Hopkins’ inexperience or lack of skill. The record clearly demonstrates the contrary.

|1fiFurther, the four unpaid experts who testified were unanimous that Seth Hopkins’ original request for 6,199.5 hours was reasonable. This was before Hopkins removed over 700 hours from his request. Edward Fonti, who was a local attorney experienced in ADA law, stated “[t]he itemized billing summary in this case reflects only services and fees necessary for the prosecution of this case and which I and other practitioners of this area of law might have reasonably charged if in the position of prosecuting this case under the same circumstances.”

Winfield Little, a former President of the Southwest Louisiana Bar Foundation, who had prosecuted an ADA case in the past, stated in his affidavit that the hours billed were consistent with local billing practices:

I am aware that the Covington case has been a long, contentious, and novel case which has resulted in a summary judgment for the plaintiffs, has involved a significant federal civil rights investigation, and has made a significant impact in the field of disability discrimination law in Louisiana. I consider it completely reasonable and consistent with local billing practices for a case of this length and impact to require 6,000 or more hours of billable time to prosecute.

Thomas Lorenzi, who was involved in an ADA case in southwest Louisiana, testified in his affidavit he “consider[ed] it completely reasonable and consistent with local billing practices for a case of this length and impact to require 6,000-6,500 or more hours of billable time to prosecute.”

Jonathan Prejean, who averred that he has evaluated in excess of 2,000 legal bills from firms throughout the world, praised Hopkins’ “lean staffing,” and stated in his affidavit:

Based on my review of the complexity and detail of the Covington case and particularly the requirements for extensive expert testimony, appeals, and contested motions, I consider this case to reach a level of complexity that rivals other complex litigation like patent litigation. I consider 6000-6500 hours of attorney time entirely reasonable for such a case. I have also reviewed the billing summary for this case, and the billing entries appear to reflect reasonable tasks to be performed personally by an experienced attorney. Work with the Department of Justice, for example, should rightly be seen as valuable attorney work toward the outcome in this case. There do not 11fiappear to be any substantial charges for administrative tasks that might have been performed by less experienced attorneys who would be reasonably compensated at a lower rate than the blended and multiplied hourly rate being requested in this case.

Considering the testimony of the four expert attorneys that the amount of hours billed was well within that expected for such a complex civil rights case, as well as the trial court’s acknowledgment that McNeese’s “constant attempts to prolong this litigation” unduly increased the “number of hours which Plaintiffs counsel was required to expend prosecuting this case,” the reduction of Hopkins’ billable hours by 20% was an abuse of discretion. See Cunningham v. City of McKeesport, 807 F.2d 49 (3rd Cir.1986), cert, denied, 481 U.S. 1049, 107 S.Ct. 2179, 95 L.Ed.2d 886 (1987). Therefore, we amend the judgment to award Seth Hopkins 5,489.5 billable hours.

III. The Reasonable Hourly Rate.

Both McNeese and Covington contend the trial court’s award of $240.00 as the reasonable hourly rate was in error. As set forth above, in calculating attorney fees under the “lodestar” method the court multiplies the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers. A reasonable hourly rate is “to be calculated according to the prevailing market rates in the relevant community” for attorneys of similar experience in similar cases. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); see also Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.1990). An award of attorney fees should be high enough to “facilitate plaintiffs’ access to the courts to vindicate their rights by providing compensation sufficient to attract competent counsel.” McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir.2011). In determining the amount of reasonable attorney fees to award under federal fee shifting statutes, the trial court is afforded considerable discretion. Hensley, 461 U.S. 424, 103 S.Ct. 1933.

|17At the hearing below, Covington relied on the affidavits of her experts which set forth that $265.00 was the prevailing base rate for civil rights litigation in Lake Charles. McNeese provided the trial court with several decisions from the Western District of Louisiana that the prevailing market rate in the Lake Charles community ranges from $105.00 to $200.00 per hour. The trial court noted these cases, but declined to rely on them because they were not published decisions. It noted the only published case cited by McNeese was decided in 1996 and found a reasonable hourly rate in an ERISA action was $120.00 to $140.00. The trial court concluded, after indicating it would not consider rates outside of Lake Charles and would not consider Covington’s cases from neighboring districts, that $240.00 was the prevailing hourly rate in the Lake Charles area “based on the testimony and authority submitted.”

McNeese argued it was improper for Hopkins to increase his hourly rate from the $175.00 charged in 2001, which McNeese acknowledged was reasonable, to $265.00 today. The law, however, is settled that a prevailing party is entitled to receive current, rather than historic, rates in a fee shifting case. See Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). Obviously attorney rates have increased over the last ten years, and the $265.00 hourly rate was accepted by all four of Covington’s experts as the current base line rate for the Lake Charles area.

We find nothing in the record to support the reasonable hourly rate being set below $265.00. See Cunningham, 807 F.2d 49. Winfield Little, who, as noted above, handled one of the few ADA cases in the Lake Charles area, felt a $265.00 hourly rate was “extremely reasonable” and a “modest base rate.” Thomas Lorenzi believed $265 per hour was extremely reasonable in this case, and noted he customarily charged $385.00 per hour. Notably, the $400,000.00 cash settlement | isand six-year scholarship, the injunctive relief prohibiting McNeese from continuing to discriminate against the disabled, the fact that the case prompted a U.S. Justice Department investigation and resulted in $13.8 million being dedicated to bring McNeese’s campus into ADA compliance are ringing endorsements of Covington’s attorneys’ superior performance. Therefore, we amend the judgment to set the reasonable hourly rate at $265.00 per hour.

IV. Enhancement of the Trial Court’s “Lodestar” Fee Calculation.

Covington urges on appeal that the trial court erred in refusing to award an enhancement to the lodestar hourly rate claimed. The Advocacy Center of Louisiana filed an amicus curiae brief in support of Covington’s right to an enhancement. A review of the trial court’s written reasons indicate several grounds it relied upon in denying the enhancement. These included the fact that taxpayers will ultimately bear the brunt of any enhancement, that an enhancement may not be awarded based on factors that are subsumed in the lodestar calculation, and that the U.S. Supreme Court has “never sustained an enhancement of a lodestar award for performance.”

Covington argues an enhancement in this case is justified under the factors presented in Johnson, 488 F.2d 714. In Johnson, the federal appellate court listed 12 factors that a court should consider in determining a reasonable fee. . Those factors were:

(1) the 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 the 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.

Id. at 717-19.

liJn Hensley, the U.S. Supreme Court citing Johnson, noted that the district court could, in its discretion, adjust the lodestar figure “upward or downward” to account for the “important factor of the ‘results obtained.’” Hensley, 461 U.S. at 434, 103 S.Ct. at 1940. Hensley instructed that the district court should “focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation,” but there was “no precise rule or formula” for taking this factor into consideration. Id., 461 U.S.. at 435-36, 103 S.Ct. at 1940-41.

In the years since Hensley, the Supreme Court has attempted to “cabin” the amount of discretion afforded district courts in adjusting the lodestar figure. In Blum, 465 U.S. at 897, 104 S.Ct. at 1548, the Court clarified that while “there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high,” the lodestar figure is “presumed” to be reasonable. The Court also warned against “double counting” factors such as the “amount involved and results obtained” by adjusting the lodestar figure where those factors are fully reflected in the reasonable hourly rate of the attorneys and the reasonable number of hours expended. Blum, at 899-900,104 S.Ct. 1541. The Court noted “[bjecause acknowledgment of the ‘results obtained’ generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award.” Id. at 900, 104 S.Ct. 1541.

More recently, in Perdue v. Kenny A. ex rel. Winn, 559 U.S.-, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010), the court commented that the factors in Johnson “gave very little actual guidance to district courts. Setting attorney’s fees by reference to a series of sometimes subjective factors placed unlimited discretion in trial judges and produced disparate results.” It further noted the “lodestar” approach has “achieved dominance in the federal courts after our decision in Hensley.” Id. at |201672. Although noting the “lodestar” approach was not perfect, the court observed “unlike the Johnson approach, the lodestar calculation is ‘objective,’ Hensley, supra, at 433, 103 S.Ct. 1933, and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results.” Id. at 1672.

The Perdue court, citing Blum, also emphasized “there is a ‘strong presumption’ that the lodestar figure is reasonable.” Id. at 1672. Noting it had never sustained an enhancement of a lodestar amount for performance, the supreme court emphasized that the strong presumption in favor of the lodestar figure can only be overcome in “‘rare’ and ‘exceptional’ circumstances.” Id. at 1674.

Covington takes exception with the trial court’s seemingly heavy reliance on the fact that the taxpayers of this state will be burdened by any additional fees rather than those responsible for the discriminatory violations on which Covington’s judgment is based. The Perdue court addressed this argument:

Section 1988 serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute’s aim. In many cases, attorney’s fees awarded under § 1988 are not paid by the individuals responsible for the constitutional or statutory violations on which the judgment is based. Instead, the fees are paid in effect by state and local taxpayers, and because state and local governments have limited budgets, money that is used to pay attorney’s fees is money that cannot be used for programs that provide vital public services. Cf. Horne v. Flores, 557 U.S. [483, 446-450], 129 S.Ct. 2579, 2593-2594,174 L.Ed.2d 406 (2009).

But, the Supreme Court in Perdue was clear to “reject any contention that a fee determined by the lodestar method may not be enhanced in any situation” when the government will ultimately pay the tab. Perdue, 130 S.Ct. at 1673. Certainly the results achieved by counsel for Covington, as well as the hostile behavior engaged in by McNeese which served only to protract the litigation in these proceedings, |ziare factors that weigh heavily in favor of an enhancement to the lodestar award. Additionally, the substantial financial benefit gained by McNeese in receiving nearly fourteen million dollars for improvements to its facilities by the action pursued by Hopkins as a “private attorney general” is no small matter.

We accept as sound the Supreme Court’s conclusion that a strong presumption exists favoring the reasonableness of the lodestar figure that can only be overcome in “rare” and “exceptional” circumstances. We find that this is indeed the kind of “rare” and “exceptional” case in which enhancement is entirely merited. We note from the Plaintiffs initial request in 1995, for a meager accommodation — one accessible women’s restroom in one identified building — for handicapped students, it has taken McNeese a total of almost 5,000 days to respond at all to this plea, except to wage a war of attrition against Coving-ton and her attorneys. It took McNeese 3,300 days from the date the suit was filed, 1,200 days from the ruling on the summary judgment ordering relief, and 395 days from the date the appeal was final to formulate and take steps to implement any accommodation plan for Plaintiff or other handicapped persons attempting to use its facilities. While McNeese applauds its willingness to settle Covington’s personal injury claim, even that courtesy did not come until April 2010 — nearly three years after the trial court’s summary judgment holding it liable was rendered.

The record discloses that over the protracted course of this litigation McNeese’s actions precipitated Plaintiffs filing at least six consolidated motions to compel discovery. When Plaintiffs counsel had amassed 800 hours of attorney time in the matter he sent a letter to McNeese urging it to put an end to the litigation and its rising costs by agreeing to Plaintiffs humble request for a restroom. At the summary judgment hearing, Judge Carter also urged McNeese to “put an end to this— give her a bathroom — stop making these lawyers work ...” McNeese responded by filing a belated recusal motion, urged by its legal | Z2representative, eventually forcing the removal of Judge Carter from the case. By this time the summary judgment record included 25 volumes — 500 pages of original briefs, 7,500 pages of exhibits, and a truckload of documents.

The United States Supreme Court in Perdue specifically acknowledged an enhancement may be necessary when “an attorney’s performance involves exceptional delay in the payment of fees” and when “the litigation is exceptionally protracted.” Perdue, 130 S.Ct. at 1674-75. As noted, it did not exempt public institutions from the threat of such an award. We are persuaded by Covington’s argument and the later cases following the reasoning of Perdue that an enhancement is warranted in this case, particularly considering the exceptional delays these attorneys have faced in recouping their expenses and fees, largely attributable to McNeese’s unrelenting efforts to avoid the consequences of its inexcusable deafness when hearing the pleas of the disabled using its public facilities. See McClain v. Lufkin Indus., Inc., 649 F.3d 374 (5th Cir.2011); Baker v. Windsor Republic Doors, 414 Fed.Appx. 764 (6th Cir.2011). The trial court in this matter specifically noted McNeese was “disdainfully defensive” of the unacceptable condition of its campus and adopted a “militant defense” throughout the litigation in “the face of its obvious error.” The trial court also recognized the hours required to prosecute the case were “certainly ... increased by [McNeese’s] constant attempts to prolong this litigation.” McNeese took extreme positions throughout the proceedings, beginning with allegations that Cov-ington was faking her disability, a position this Court referred to as “unfathomable” and “completely unsupported by the record.” In responding to the present attorney fee application, which the United States Supreme Court has advised “should not result in a second major litigation,” (see Hensley, 461 U.S. at 437, 103 S.Ct. 933) McNeese took the untenable position that Seth Hopkins was entitled to nothing. In an attempt to advance its unreasonable position, McNeese engaged in burdensome and over-reaching ^discovery, attacked Hopkins’ worth and credibility as an attorney, and turned the attorney fee motion and hearing into a lengthy proceeding full of personal venom, extending even on this appeal.

McNeese’s prolonged “militant” behavior is reason enough for awarding an enhancement. When coupled with the extraordinary success achieved by Cov-ington’s attorneys, it appears to more than meet the “rare” and “exceptional” circumstances mentioned by the United States Supreme Court. The Advocacy Center’s amicus curiae brief noted the “results in this case clearly reflected superior performance by [Covington’s] counsel.” Above and beyond the $400,000.00 cash settlement, injunctive relief, and six-year scholarship awarded to Covington, the case prompted the U.S. Department of Justice to undertake an investigation of the McNeese campus, which resulted in an ADA settlement which provided the McNeese campus with $13.8 million to renovate the campus and bring it into ADA compliance. But despite the ultimate reward it gained from violating the ADA, McNeese persisted in its attempt to avoid full legal responsibility for its shameful past behavior. In its closing remarks during oral argument before this court, McNeese once more demonstrated its refusal to recognize the seriousness of its past failure to comply with the ADA mandates by dismissing Plaintiffs success in this case as “insignificant.”

However, our decision to grant an enhancement in this case must also dovetail with this court’s responsibility to use a method that is reasonably objective and capable of being reviewed on appeal. Per-due, 130 S.Ct. at 1674. Guided by this principle, we fix the enhancement at nine and one-half percent (9.5%) interest — the statutory judicial interest rate in 2007, the year summary judgment was rendered in this case. This method is in keeping with the United States Supreme Court’s holding in Perdue:

124[T]here may be extraordinary circumstances in which an attorney’s performance involves exceptional delay in the payment of fees. An attorney who expects to be compensated under § 1988 presumably understands that payment of fees will generally not come until the end of the case, if at all. See [Kenny A. ex re. Winn. v. Perdue ] 582 F.3d [1209], at 1227 [ (2008) ] (opinion of Carnes, J.). Compensation for this delay is generally made “either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value.” Missouri v. Jenkins, 491 U.S. 274, 282, 109 S.Ct. 2468, 105 L.Ed.2d 229 (1989) (internal quotation marks omitted). But we do not rule out the possibility that an enhancement may be appropriate where an attorney assumes these costs in the face of unanticipated delay, particularly where the delay is unjustifiably caused by the defense. In such a case, however, the enhancement should be calculated by applying a method similar to that described above in connection with exceptional delay in obtaining reimbursement expenses. (Emphasis added)

Id., at 1675. The method referred to in Perdue is to apply “a standard rate of interest” to such expenses or attorney fees. Id. at 1674-75. We have limited our enhancement to this minimal remedy only out of consideration that the awards will be borne by the taxpayers of this state, rather than exclusively by those who willfully and inexcusably practiced discrimination plainly and expressly forbidden by both Louisiana and federal law. Were this not the case, our ruling would surely be to accept young Hopkins’ eloquent plea for greater compensation. Perhaps, if given the opportunity, our supreme court may be inclined to see differently, employing a greater enhancement method, which we would deem a welcome clarification of existing jurisprudence.

Our courts must always remain mindful that there are a limited number of attorneys willing to bear the personal cost and sacrifices inherent in most civil rights litigation. We cannot underestimate the chilling effect this type of militant and pernicious behavior heaped upon Plaintiff and her counsel for ten years, and even now on appeal, has upon other attorneys, young and old, as well as potential plaintiffs. It is the court’s duty to likewise send a message to the bar, experienced as well as eager young lawyers, that they may rely upon the precepts of law as well as fundamental fairness and fair-play, to protect and safeguard them against the Impersonal and financial costs of truly devoted representation of their clients. These attorneys’ representation spanned a decade of hard work and sacrifice in the face of obstinate resistance to laws guaranteeing basic human and civil rights and public attacks on their character and worth. To do anything less is a disservice to the citizens which these laws are designed to protect and to the gallant attorneys willing to make years of personal sacrifice in the cause of justice.

V. Sanctions for Frivolous Appeal.

Covington also seeks sanctions against McNeese under La.Code Civ.P. art. 2164 for a frivolous appeal. While we find McNeese’s arguments are without merit, we cannot say there is no legal basis, however tenuous, for its position on appeal. Therefore, we will not award sanctions for a frivolous appeal.

VI. Additional Attorney Fees for Work Performed on Appeal.

Covington seeks an award of additional attorney fees for the work necessitated by this appeal. The attorneys list their hours of work on appeal as follows: “158 hours for Seth Hopkins, 80 hours for James Hopkins, and 36 hours for Lee Archer, at the rate established on appeal.” Additionally, Covington’s attorneys seek an award of attorney fees for their work on their reply brief addressing the issue of striking Allen Smith’s testimony in the amount of “32 hours for Seth Hopkins, 17 hours for James Hopkins, and 12 hours for Lee Archer at the rate established on appeal.”

In cases where attorney fees are awarded by the trial court, and a subsequent appeal has required additional work on the part of plaintiffs counsel to defend against an unsuccessful appeal, the courts have found an award of attorney fees for the defense of an appeal is merited. See Sims v. Sun Chemical Corp., 34,947 (La.App. 2 Cir. 8/22/01), 795 So.2d 439; Tillmon v. Thrasher Waterproofing, 00-395 (La.App. 4 Cir. 3/28/01), 786 So.2d 131. This Court has held when “attorney fees were correctly awarded below, failing to award increased attorney fees for the ^additional work required for this appeal would be inconsistent with that judgment.” Frank v. Kent Guidry Farms, 01-727, p. 5 (La. App. 3 Cir. 5/8/02), 816 So.2d 969, 973, unit denied, 02-1608 (La.6/27/03), 847 So.2d 1273.

Covington properly requested attorney fees associated with the appeal and claimed 335.00 hours of work by plaintiffs counsel was necessitated to defend the present appeal at a rate of $265.00 per hour. McNeese has not attacked as unreasonable the hours claimed by the attorneys on appeal. We award Plaintiff additional attorney fees in the amount of $88,775.00 for work required to successfully litigate this matter on appeal.

VIL Motion To Strike McNeese’s Expert’s Testimony

After the six-day hearing on the motion to set attorney fees, the trial court agreed to accept transcribed expert deposition testimony from the parties solely pertaining to the appropriate hourly rate to be used in calculating the award of attorney fees. Covington filed a Motion to Strike seeking to have excerpts submitted by McNeese stricken from the record, as those excerpts included testimony from its expert witness as to the reasonableness of hours expended litigating the case. McNeese responded with a one page letter, declining to respond to the motion and instead noting the trial court would “undoubtedly give the appropriate weight to the evidence submitted.” The trial court then granted Covington’s essentially unopposed motion striking “those portions of deposition transcripts submitted by [McNeese] wherein witnesses opine as to the reasonableness of hours expended ..., such that only those portions of transcripts wherein witnesses testify as to the reasonableness of an hourly rate or factors relating to a reasonable hourly rate shall remain part of the case record.”

Covington notes on appeal McNeese did not allege any error on the trial court’s part in striking this testimony. However, McNeese did refer to this stricken testimony of its expert several times in brief. Covington filed a Motion to Strike la7the Testimony of McNeese Expert Allen Smith with this Court, seeking to enforce the trial court’s order limiting portions of the deposition excerpts to that pertaining to the reasonableness of the hourly rate. The motion was referred to this panel on the merits.

Specifically, Covington complains about the following references to this expert’s deposition testimony contained in McNeese’s original brief:

(1) in reference to timesheets that were submitted by Seth Hopkins, “[Yjou’re not going to like what it suggests to me ...”
(2) “Significantly, one of Hopkins’ own experts (Tom Lorenzi) and McNeese’s expert (Allen Smith) both agree that it is difficult for a lawyer to have as much as 7.5 to eight billable hours in a single day.”
(3) “McNeese’s expert, Allen Smith, confirms that the hours claimed are simply not believable.”
(4) “As noted by Allen Smith: ‘That’s more than just an occasional transposition, to me.... [T]hat shows me that there was something going on other than inadvertence.’ ”
(5) “Beyond that, as pointed out by Allen Smith: ‘If you find that there are entries which are inflated or suspect, then it makes you suspect everything that you have seen, and you know the old falsus in unum, falsus in exten-sor...’”

There is no question the passages referenced above pertain to the reasonableness of the hours expended by Seth Hopkins rather than the reasonableness of the hourly rate, and are in violation of the trial court’s order. Therefore, we grant Cov-ington’s Motion to Strike these passages in McNeese’s brief.

VIII. Motion To Strike McNeese’s Reply Brief.

Covington also filed a Motion to Strike McNeese’s Reply Brief on the grounds it violated the Uniform Court of Appeal Rules because it was not strictly confined to a rebuttal of Covington’s points and contained “numerous offensive, insulting, abusive, discourteous and irrelevant criticisms of Covington’s counsel.” While McNeese’s Reply Brief does not comply with the rules referenced by | ^Covington, we will allow it to remain in the record, as it evidences the vitriolic behavior engaged in by McNeese on appeal. Therefore, we will deny Covington’s Motion to Strike McNeese’s Reply Brief.

DECREE

For the foregoing reasons, the judgment of the trial court reducing Seth Hopkins’ billable hours by 20% is reversed and the judgment is amended to award Seth Hopkins 5,489.5 billable hours. We also amend the judgment to set the reasonable hourly rate for Covington’s attorneys at $265.00 per hour. We further amend the judgment to set the judicial rate of interest on all attorney fees awarded herein at a rate of 9.5%, such interest to commence as of February 24, 2011, continuing until paid. In all other respects the judgment is affirmed. The Motion to Strike those passages in McNeese’s brief pertaining to the reasonableness of the hours expended by Seth Hopkins is granted. The Motion to Strike McNeese’s Reply Brief is denied. We also award $88,775.00 in attorney fees for the work required to successfully litigate this matter on appeal. All costs of this appeal in the amount of $57,249.00 are assessed against defendant-appellant, McNeese.

AFFIRMED IN PART; REVERSED IN PART; AMENDED; MOTION TO STRIKE PASSAGES GRANTED; MOTION TO STRIKE REPLY BRIEF DENIED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

PICKETT, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

hi concur with the majority that the plaintiff is entitled to attorney fees in this case. I also agree with the decision to deny the request for sanctions for frivolous appeal and with the dispositions of the motions to strike.

However, I dissent from the remaining aspects of the majority opinion as I conclude that a full affirmation of the underlying judgment is appropriate. Notably, I find that the trial court acted within its discretion in compensating fewer attorney hours than sought and in determining the appropriate hourly rate.

Similarly, I conclude that the trial court acted reasonably in denying the enhancement to the lodestar hourly rate claimed. Therefore, I dissent from the majority’s decision to apply that enhancement on appeal. Instead, I think it is likely that, in awarding the present day market value to the attorney’s hourly rate rather than applying the prevailing historical rates at the time the hours were accrued, the trial court took into account some of the very compelling factors at work in this case. Further, jurisprudence suggests that a significant delay between the time legal services are rendered and the time that they are awarded may be acknowledged with either a delay enhancement or an award based on current market rates. See, e.g., Humphrey v. United Way of Texas Gulf Coast, 802 F.Supp.2d 847 (S.D.Tex.2011). See also Walker v. U.S. Dep’t of HUD, 99 F.Sd 761, 773 (5th Cir.1996) (wherein the Fifth Circuit explained that, in eompensat-ing 12for a delay in payment in a desegregation proceeding “the district court may either grant an unenhanced lodestar based on current rates ... or calculate the lodestar using the rates applicable when the work was done and grant a delay enhancement. ... It may not do both.”).

I also differ from the majority with regard to the appropriate amount of attorney fees awarded for work performed on appeal. Certainly, the plaintiffs defense of this appeal supports the award of fees pursuant to 42 U.S.C. § 12205. However, I believe that much of the litigation expense reported by the plaintiffs counsel was accrued in pursuit of the answer, which I have generally found to be unsuccessful. Therefore, I would set a figure lower than that now awarded.

For these reasons, I respectfully dissent in part and would affirm the trial court’s decision in full.

PICKETT, J.,

concurring in part and dissenting in part.

hi concur with the majority that the fee application submitted by the attorneys for Covington was properly accepted by the trial court. I also concur with the determination that the reduction of hours was error and would increase the hours to the full number submitted in the fee application. I join the opinion insofar as damages for frivolous appeal are denied and with the dispositions of the motions to strike.

I disagree with the majority that the trial court abused its discretion in setting the hourly rate at $240.00. McNeese submitted recent cases from the Western District which were unpublished, and which the trial court claimed not to rely on in reaching its decision that the hourly rate would be $240.00. I see no reason to similarly discount those cases. I believe the $240.00 figure is within the broad discretion afforded the trial court in setting the rate, and would affirm the trial court’s judgment.

I also disagree that an enhancement of the lodestar calculation is appropriate in this case. As I read the Supreme Court jurisprudence comprehensively cited by the majority, I would find that this is not the “rare and exceptional case” in which the award should be enhanced. The majority notes that the U.S. Supreme Court has tried to “cabin” the use of enhancements. I find that the “strong presumption” |2that the lodestar fee is reasonable holds in this case. I agree that McNeese and its agents acted deplorably towards Covington, its lawyers used every dilatory tactic in the book to avoid compensating her or addressing her grievances, and that the abuse continued into this litigation over the attorney fees. But I find that the award is sufficient to compensate Coving-ton’s attorneys. I would simply find that the amount reached by applying the lodestar calculation is not unreasonably low, and therefore an enhancement is not appropriate, for these reasons and the reasons assigned by Judge Amy in his dissent.

Finally, I dissent from the amount awarded for attorney fees for work done on appeal. I agree that we can and should award additional fees. See Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), where the Supreme Court affirmed an award of additional attorney fees for work done appeal in a suit brought by prisoners in Arkansas. I think, though, that in order to award additional attorney fees, we must make a specific finding' that Covington is a prevailing party under 42 U.S.C. § 12205 in this appeal. I would so find. Nevertheless, I believe the amount awarded by the majority is excessive, and would award a lower amount.

      . We note with interest that counsel for McNeese, in a fee shifting case involving interpretation of an oil lease located in Calca-sieu Parish, was awarded $805 per hour for 4,970 total hours by this Court (with total attorney fees amounting to approximately $4,000,000). See Corbello v. Iowa Prod., 01-567 (La.App. 3 Cir. 12/26/01), 806 So.2d 32, 51-52, reversed on other grounds, 02-826 (La.2/25/03), 850 So.2d 686 (however, the attorney fee award was upheld by the supreme court).


source: Caselaw Access Project

author: DICKINSON, Presiding Justice, KING, Justice,

license: Public Domain

text:
    The KROGER CO. and Kroger Limited Partnership I v. Linda KNOX
    No. 2009-CA-01008-SCT.
    Supreme Court of Mississippi.
    June 28, 2012.
    Rehearing Denied Oet. 11, 2012.
    Leann W. Nealey, Donna Brown Jacobs, Ridgeland, William O. Luckett, Jr., Clarks-dale, Mary Leslie Davis, attorneys for appellants.
    James Ashley Ogden, James W. Smith, Jr., Jackson, Robert Farley Wilkins, attorneys for appellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Isaiah Robinson accosted Linda Knox in a Kroger parking lot, punched her several times, and took her purse. Claiming Kroger had a duty to place an armed guard in its parking lot and that its breach of that duty led to her injuries, Knox sued The Kroger Company and Kroger Limited Partnership I (“Kroger”) and recovered damages. But unless Kroger was on notice of an atmosphere of violence in its parking lot, it had no duty to place an armed guard there. And because Knox failed to present sufficient evidence on this point, we must reverse and render.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. After Knox purchased groceries at the Kroger grocery store on the east side of 1-55 in Northeast Jackson, she loaded them into her car, which was parked in Kroger’s parking lot, and then opened her car door while carrying a purse on her arm. Robinson got out of his car and demanded Knox’s purse. When Knox refused, Robinson lunged at her, knocked her to the ground, and punched her several times. Robinson. then grabbed her purse and ran back to the car. Knox suffered injuries to her face, especially her right eye.

¶ 3. Knox filed suit against Kroger and several other defendants, including Robinson and Securitas Security Services, USA, Inc., a private security company that provided security services to Kroger as an independent contractor. On the day of the incident, Kendra Jackson, who was employed by Securitas, was an unarmed guard on duty at Kroger.

¶ 4. At trial, Knox called Kroger’s store manager, Chuck Head, as an adverse witness, who testified that Kroger had an average of 2,800 to 3,000 customers per day, and in the three years prior to the Knox incident, there had been only three reports of purse-snatchings. Kroger incident reports also showed that a woman had her purse stolen from her car while she returned her grocery cart.

¶ 5. Head also testified that Kroger hired a sheriffs deputy to stand inside the foyer of the store and patrol the outside sidewalk from 9:00 a.m. until midnight; that it hired Securitas officers to patrol the parking lot from 9:00 a.m. until 2:00 a.m.; and that, in case of an incident, the sheriffs deputy and security officer were in contact via a walkie-talkie or cell phone and would work together to address the situation. Kroger also provided a carryout service to assist customers in transporting their groceries to their cars.

¶ 6. Allen White, a lieutenant with the Jackson Police Department, testified that he felt Kroger’s security measures were inadequate, and that he previously had discussed security measures with Kroger’s managers, including Head, and recommended that Kroger should use off-duty police officers as security or place the uniformed armed officer outside the store and the security guard inside the store.

¶ 7. Kenneth Goodrum and Tyrone Lewis testified for Knox as causation experts. Goodrum testified that, “In my expert opinion, I believe the armed security should have been reversed. The armed deputy should have been in the parking lot to protect the customers that were coming in there to spend their money and buy Kroger’s product. The security guard could have been inside at the front to deal with the shoplifting.”

¶ 8. According to Goodrum, Kroger’s failure “to provide adequate security was the proximate cause of [Knox’s] injuries on that day.” Goodrum stated that “[a]n armed officer should have been in that parking lot.”

¶ 9. Lewis testified that the Securitas officers were inadequate because “they were not allowed to do anything when it comes to servicing and protecting that particular property. They were only to observe and report, with no authority to act.” Lewis testified that “It was Kroger’s responsibility and it was their duty to provide adequate security on that property which they did not do.” According to Lewis, if an armed officer had been in the parking lot, the incident would not have occurred.

¶ 10. After Knox concluded her case-in-chief, Kroger moved for a directed verdict and argued that the evidence was insufficient to support Knox’s claim. The trial court denied the motion, and the jury returned a verdict of $2,500,000.

¶ 11. Kroger appealed, raising several issues, including whether the trial court erred by denying Kroger’s motions for directed verdict and judgment notwithstanding the verdict. We find this issue disposi-tive.

ANALYSIS

¶ 12. The issue before us — whether a trial judge should have granted a motion for a directed verdict or judgment notwithstanding the verdict (JNOV) — requires a de novo review. As we have said before, a “motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of the JNOV if there is substantial evidence to support the verdict.” And “substantial evidence,” as this Court has defined it, is evidence “of such quality and weight that reasonable fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” Under this standard, “[t]he evidence is viewed in the light most favorable to the verdict.”

¶ 13. The law of torts is well understood. To recover on a negligence claim, a plaintiff must show that the defendant breached a particular duty owed to the plaintiff, and that the breach of duty proximately caused damages. And while it is true that those in control of real property have a duty, if reasonably possible, to remedy most dangerous conditions on their property and to warn of those they cannot eliminate, that duty presupposes the defendant knows, or should know, of the dangerous condition.

¶ 14. Where the alleged dangerous condition is the threat of an assault, “[t]he requisite cause to anticipate the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.” Because Knox does not allege Kroger had actual knowledge of Robinson’s violent nature, she depends solely on her assertion that Kroger was aware of an atmosphere of violence on its premises.

¶ 15. In an attempt to establish Kroger’s knowledge of an atmosphere of violence in its parking lot, Knox presented evidence of four Kroger incident reports involving three purse-snatchings and one stolen purse, over the course of three years. Knox also presented evidence that one of Kroger’s managers was aware of crime throughout the 1-55 corridor.

¶ 16. We find as a matter of law that — in the context of Kroger’s more than three million customer visits over the course of three years — four incidences of criminal activity are wholly insufficient to establish an atmosphere of violence on Kroger’s parking lot. And imposing liability without notice of an atmosphere of violence would be nothing short of strict liability for injuries caused by the criminal activity of third parties. It is well settled that a property owner is “not an insurer of an invitee’s safety,” but owes only “a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another.”

¶ 17. The fact that crime occurs throughout the 1-55 corridor — absent sufficient evidence of criminal activity on the defendant’s property, or near enough to pose a danger to Kroger’s customers — is also insufficient.

¶ 18. Although there was testimony about “calls for service” involving ten possible additional crimes against the person, Knox presented no police reports or other evidence verifying the accuracy of the calls. As the Fifth Circuit noted, “police incident reports” are prepared by the responding officers when they confirm that a crime has occurred. Here, we do not have them.

¶ 19. For further support, Knox cites Thomas v. Columbia Group, LLC, to show that “evidence of an existing atmosphere of violence may include ‘the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.’” But in Thomas, the plaintiff presented evidence of more than five deadly shootings and numerous incidences of fighting on the premises within the ten years preceding the plaintiffs incident. Further, the plaintiff presented evidence that the business’s manager knew that the plaintiff had been shot on the property several days before the same shooter came back to the property and killed the plaintiff. According to the evidence, the business’s manager knew of each of these shootings.

¶20. Here, Knox presented little evidence that Kroger was aware, or should have been aware, of any violent attacks in its parking lot. Instead, Knox showed only that Kroger knew of three purse-snatchings and an incident of a purse stolen from a car. There were no violent attacks similar to the attack suffered by Knox.

¶ 21. This case is also distinguishable from Gatewood v. Sampson, in which sixty violent crimes had been reported near the business’s premises within the three years before one of its patrons was shot; and Glover v. Jackson State University, in which JSU was shown to have knowledge of the two rapists’ violent tendencies, and sixty-three crimes had been reported on JSU’s campus during the three months before the rape. Of these sixty-three crimes, twenty-one were reports of violence and four were reports of rape and sexual battery.

¶ 22. Gatewood and Glover presented a jury question as to whether an atmosphere of violence existed. But more analogous to this case is our decision in Crain, in which we found no atmosphere of violence. There, in the fifty-five months before the attack on the plaintiff, there were reports of numerous commercial burglaries and of larceny within the business’s vicinity. Also, there were eleven assaults, robberies, and other violent crimes in that five-year period in the surrounding two blocks. We held that the plaintiff failed to produce evidence that the assault was foreseeable. Here, the evidence is equally insufficient to find that Robinson’s assault on Knox was a foreseeable consequence of not having an armed guard in the Kroger parking lot. We have said — in similar cases — that “merchants are not required to carry out the duties of the police force”; and we hold to this principle.

¶ 23. Because Kroger was not on notice of an atmosphere of violence on its premises, it had no duty to place an armed security guard in its parking lot. And in the absence of this duty, there is no need to address the remaining elements of the negligence action.

CONCLUSION

¶ 24. Knox presented insufficient evidence to establish that Kroger had a duty to place an armed guard in its parking lot, and a reasonable jury could not have found Kroger liable for the unforeseeable attack on Knox. We therefore reverse and render a judgment for Kroger.

¶ 25. REVERSED AND RENDERED.

CARLSON, P. J., LAMAR AND PIERCE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ., WALLER, C.J., AND RANDOLPH, J., NOT PARTICIPATING.

KING, Justice,

dissenting:

¶ 26. Linda Knox filed suit against Kroger alleging that its negligence in failing to provide adequate security was the proximate cause of the injuries she sustained as a result of a purse snatching. The Circuit Court of Hinds Count County held in favor of Knox. Kroger filed post-trial motions and argued that the evidence was insufficient to support Knox’s claim.

¶ 27. While on her way home from work on June 4, 2007, at approximately 5:00 p.m., Knox, a 61-year-old female, stopped at the Kroger on 1-55 in northeast Jackson to purchase groceries. Also that afternoon, Conerly Chapman, Isaiah Robinson and Lionel Kyles arrived at Kroger with the intention to “snatch a lady’s purse.” Chapman, Robinson, and Kyles drove through the Kroger parking lot until they spotted Knox walking out of the store toward her car.

¶ 28. Chapman drove by Knox and parked a few spaces beyond where she was parked. Robinson got out of the passenger side of the vehicle and walked toward Knox, walking faster as he approached her. When Knox refused to give up her purse, Robinson struck and severely injured her.

¶ 29. On September 4, 2007, Knox filed suit against Kroger, Isaiah Robinson, Lionel Kyles, Securitas Security Services, USA, Inc., Kendra Jackson, and T & M Jackson Development, LLC. The complaint alleged that Robinson was the person who snatched Knox’s purse and Kyles drove the get-away vehicle. On October 9, 2007, Robinson and Kyles were voluntarily dismissed from the lawsuit. Knox settled with Securitas/Jackson and T & M, leaving Kroger as the only defendant. On April 6, 2009, the case proceeded to trial.

¶ 30. Knox called Chuck Head, store manager of Kroger, as an adverse witness. Head testified that Kroger provided reasonable and adequate security to its customers. According to Head, in the three years prior to the Knox incident, there had been only three reports of purse snatching. Head testified that to secure the premises, Kroger had hired a sheriffs deputy to stand inside the foyer of the store and patrol the outside sidewalk from 9:00 a.m. until midnight. Head testified that Securi-tas officers had been hired to patrol the parking lot from 9:00 a.m. until 2:00 a.m. Head testified that, in case of incident, the sheriffs deputy and security officer were in contact via a walkie-talkie or cell phone and would work together to address the situation.

¶ 31. According to Head, in addition to security, Kroger provided a carry-out service to assist customers in transporting groceries to their cars. He suggested the presence of employees within the parking lot increased employee awareness to possible threatening situations and served as a deterrent to crime.

¶ 32. Allen White, a lieutenant with the Jackson Police Department, testified that he felt Kroger’s security measures were inadequate. White testified that he previously had discussed security measures with Kroger managers, including Head, and had recommended that Kroger should use off-duty police officers as security or place the uniformed, armed officer outside the store and the unarmed security guard inside the store.

¶ 33. Kenneth Goodrum and Tyrone Lewis testified for Knox as causation experts. Goodrum testified that, “In my expert opinion, I believe the armed security should have been reversed. The armed deputy should have been in the parking lot to protect the customers that were coming in there to spend their money and buy Kroger’s product. The security guard could have been inside at the front to deal with the shoplifting.” According to Good-rum, Kroger’s failure “to provide adequate security was the proximate cause of [Knox’s] injuries on that day.” Goodrum stated that “[a]n armed officer should have been in that parking lot.”

¶ 34. Lewis testified that the Securitas officers were inadequate because “they were not allowed to do anything when it comes to servicing and protecting that particular property. They were only to observe and report, with no authority to act.” As for the proximate cause of Knox’s injuries, Lewis testified that “It was Kroger’s responsibility and it was their duty to provide adequate security on that property which they did not do.” According to Lewis, if an armed officer had been in the parking lot, the incident would not have occurred.

¶ 85. The jury considered the testimony and returned a verdict of $2,500,000 in compensatory damages in favor of Knox. Kroger filed its motion to alter or amend judgment and/or provide relief from the order of judgment by way of setoff and motion for new trial or in the alternative, motion for judgment notwithstanding the verdict (JNOV). As part of the motion, Kroger moved the trial court for a setoff against the judgment for the amounts paid by the settling defendants, T & M and Securitas, which totaled $1,075,000. The trial court denied Kroger’s post-trial motions, and Kroger filed its appeal.

¶ 36. This Court applies a de novo standard of review to the denial of a motion for judgment notwithstanding the verdict (JNOV), considering all of the evidence in the light most favorable to the verdict. United States Fid. and Guar. Co. of Miss, v. Martin, 998 So.2d 956, 964 (¶ 19) (Miss.2008) (citations omitted). This Court has stated that “[a] motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict.” Id. (citations omitted). “Substantial evidence” has been defined as “information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” Id. (citations omitted).

¶ 37. To prevail on her claim, Knox must demonstrate: (1) a duty owed to her by Kroger, (2) a breach of that duty, (3) damages, and (4) a causal connection between the breach and the damages, such that the breach is the proximate cause of the damages. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988) (citations omitted). Knox argues that, because of the atmosphere of violence, Kroger owed her a duty to maintain an armed security officer in its parking lot.

¶ 38. In support of her claim, Knox offered testimony that a number of incidences of criminal activity had been reported at the Kroger parking lot and along the 1-55 North corridor. The testimony established that, prior to the assault upon Knox, Kroger had determined that it needed to employ armed and unarmed security officers, with the armed officers stationed inside the store, and the unarmed officers stationed in the parking lot. Knox offered Goodrum and Lewis as experts in premises liability, and each testified that the reported incidents in the Kroger parking lot and along the 1-55 North corridor dictated that the armed security officer should have been stationed in the Kroger parking lot. Among the incidents about which Goodrum and Lewis testified were three purse-snatchings in the Kroger parking lot over a three-year period. Both witnesses testified that Kroger’s failure to place the armed guard in the parking lot was the proximate cause of Knox’s purse being snatched and of her resulting injuries. Knox called Allen White of the Jackson Police Department, who stated that he had recommended to Kroger that the unarmed security personnel should be placed inside the store, and the armed security personnel should be placed outside the store. Knox also offered the testimony of Chapman that, if he had seen an armed police officer, he would have been deterred from pursuing the purse-snatching, but the presence of a Securitas officer would not have had the same effect.

¶ 89. Accepting this testimony as true, the question is whether Kroger was sufficiently placed on notice of the existence of an atmosphere of violence in its parking lot, that having elected to employ both armed and unarmed security personnel, Kroger owed a duty to Knox and its others patrons, to utilize the armed security personnel in the parking lot and the unarmed security personnel inside the store. See InTown Lessee Associates, LLC v. Howard, 67 So.3d 711, 717-718 (¶¶ 20-28) (Miss.2011). The notice of an atmosphere of violence may be either actual or constructive. Double Quick, Inc. v. Moore, 73 So.3d 1162, 1167 (¶ 16) (Miss.2011); Double Quick, Inc. v. Lymas, 50 So.3d 292, 298 (¶30) (Miss.2010). Kroger made the determination, well prior to this event, that a need for security existed at its 1-55 store, both armed and unarmed. Having determined that armed and unarmed security officers were needed at its 1-55 store, Kroger made the determination that it would use the armed security officers inside the store, while using the unarmed security officers in the parking lot. The evidence shows that, among the incidents reported, Kroger experienced four-purse snatchings in its parking lot over a three-year period. Whether this was sufficient to give Kroger notice of an atmosphere of violence and whether Kroger owed a duty to Knox and other patrons to utilize the armed security personnel in the parking lot is a question of fact to be resolved by the jury. InTown Lessee, 67 So.3d at 717-718 (¶¶ 20-23). In resolving the question of whether Kroger was placed on notice of an atmosphere of violence, the jury was entitled to consider and give such weight as it deemed appropriate to Kroger’s previous decision to employ both armed and unarmed security officers at its 1-55 store.

¶ 40. In addition to the expert testimony of criminal activities along 1-55 corridor and criminal activities within the Kroger parking lot, Knox also offered the testimony of one of her assailants that he would not have attacked her if an armed security officer had been visible in the parking lot. The weight and credibility to be accorded all of this evidence is a matter which falls within the province of the jury. See Thomas v. Columbia Group, LLC, 969 So.2d 849, 855 (¶22) (Miss.2007). If the jury found this evidence to be credible, it was obligated also to determine whether Kroger was sufficiently aware of the activities in its parking lot that, having determined to employ armed and unarmed security personnel, it owed a duty to Knox and its other patrons to use the armed security personnel in the parking lot and the unarmed security personnel inside the store. By returning a verdict for the plaintiff, the jury clearly found such a duty.

¶ 41. In addressing a motion for JNOV, the trial court is to view all of the evidence in the light most favorable to the verdict. Martin, 998 So.2d at 964 (¶ 19). If, in fact, substantial evidence supports the verdict, the court is obligated to deny the motion for JNOV. Id. Reasonable and substantial evidence provides a foundation for the jury’s verdict. Thus, while we might have decided otherwise, we cannot say with confidence that the verdict is not supported by substantial evidence.

¶ 42. Knox’s experts based their opinions upon their training, experience, and a review of the relevant police reports, as well as the reports generated by Kroger. That is an acceptable practice. See Thomas, 969 So.2d at 855 (¶ 22). It was then for the jury to determine with these expert witnesses, as with all witnesses, the weight and credibility to accord to their testimony. The jury clearly found this testimony to be credible. Thus, I would affirm the jury’s verdict.

¶ 43. Knox settled with the other defendants prior to trial. However, the trial court did not inform the jury of the settlement, nor was the jury requested to apportion fault to the defendants. After the verdict, Kroger asked the trial court to reduce the verdict by the amounts paid by the settling defendants.

¶44. Under Mississippi Code Section 85-5-7(2), a party is entitled to be made whole, but is not entitled to be twice compensated for the same injury. Miss.Code Ann. § 85-5-7(2) (Rev. 2011). Accordingly, the trial court should have reduced the jury verdict of $2,500,000 by $1,075,000, the settlement amount paid to Knox by the other defendants.

¶ 45. Therefore, I would affirm the verdict in favor of Knox, but remand this matter to the Hinds County Circuit Court to properly credit against the verdict those sums paid by the settling defendants.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . U.S. Fidelity & Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (Miss.2008).

      . Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 948 (Miss.2008) (citing Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 22 (Miss.2007)).

      . Natchez Elec. & Supply Co. v. Johnson, 968 So.2d 358, 362 (Miss.2007) (citing Blake v. Clein, 903 So.2d710, 731 (Miss.2005)).

      .Adcocfc, 981 So.2d at 949.

      . Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994).

      . Mayfield v. The Hairbender, 903 So.2d 733, 735-36 (Miss.2005).

      . Gatewood v. Sampson, 812 So.2d 212, 219 (Miss.2002) (quoting Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991))

      . Lyle, 584 So.2d at 399 (quoting Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 416 (Miss. 1988)).

      . Crain, 641 So.2d at 1191.

      . Double Quick, Inc. v. Lymas, 50 So.3d 292, 298 (Miss.2010) (quoting Simpson v. Boyd, 880 So.2d 1047, 1051 (Miss.2004)).

      . Tillman v. Wendy’s Int'l, Inc., 252 F.3d 434 (5th Cir.2001).

      . Thomas v. Columbia Group, LLC, 969 So.2d 849, 855 (Miss.2007) (quoting Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991)).

      . Id. at 855.

      . Id. at 854.

        .Id. at 854-55.

      . Gatewood v. Sampson, 812 So.2d 212, 220 (Miss.2002)

      . Glover v. Jackson State Univ., 968 So.2d 1267, 1279 (Miss.2007).

      . See id.; Gatewood, 812 So.2d at 221.

      . Crain, 641 So.2d at 1192.

      . Id.

      . Id.

      . Id.

      . Gatewood, 812 So.2d at 220; Crain, 641 So.2d at 1192.

      . Section 85-5-7(2) provides that:
      Except as otherwise provided in subsection (4) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault.
      Miss.Code Ann. § 85-5-7(2) (Rev. 2011).