April 26, 2012 – Rio Grande Sun and Louis Mattei, individually and as a reporter for the Rio Grande Sun v. Jemez Mountains Public School District and Adan Delgado, Superintendent and custodian of public records for the Jemez Mountain Public School District, No. 30,698

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: __APRIL 26, 2012

NO. 30,698

RIO GRANDE SUN and LOUIS
MATTEL, individually and asa
reporter for the Rio Grande Sun,

Plaintiffs-A ppellants,
V.

JEMEZ MOUNTAINS PUBLIC
SCHOOL DISTRICT and ADAN
DELGADO, Superintendent and
Custodian of public records for the
Jemez Mountain Public School District,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Sheri A. Raphaelson, District Judge

Peifer, Hanson & Mullins, P.A.
Charles R. Peifer

Matthew R. Hoyt

Lauren Keefe

Albuquerque, NM

for Appellants

Cuddy & McCarthy, LLP
Aaron J. Wolf

Y. Jun Roh

Santa Fe, NM

for Appellees

OPINION
FRY, Judge.
{1} 	In this case filed under the Inspection of Public Records Act (IPRA), NMSA
1978, §§ 14-2-1 to -12 (1947, as amended through 2011), we review the district
court’s reduction of Plaintiffs’ requested attorney fees from $30,676.50 to $5000.
Because the district court did not meaningfully consider the evidence in support of the
request for fees and because it did not employ an objective assessment of the amount
of fees reasonably necessary to successfully prosecute the case, we reverse the $5000
award and remand for recalculation utilizing the lodestar method. We also instruct the
district court to reconsider its award of costs and to award gross receipts taxes
attributable to the final fee award. 	We affirm the court’s denial of post-judgment
interest.
BACKGROUND
{2} 	Plaintiffs Rio Grande Sun (the Sun) and Louis Mattei, a Sun reporter, sued
Defendants Jemez Mountain Public School District (the District) and Adan Delgado
in order to obtain production of public records under IPRA. 	The records sought
pertained to payments the District made to a former employee who was suspected of
embezzling funds from the District. Before filing their lawsuit, Plaintiffs had made
two requests for records from the District, and the District had denied both requests.

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{3} 	The district court granted Plaintiffs’ motion for judgment on the pleadings and
ordered Defendants to produce the requested records. In accordance with Section 14-
2-12(D) of IPRA, Plaintiffs then filed a motion for an award of attorney fees,
damages, and expenses. 	Plaintiffs proffered their attorneys’ itemized billing
statements and resumes along with the affidavit of an attorney familiar with the
prevailing rates charged by attorneys, who attested to the reasonableness of the fees
charged and the competency of Plaintiffs’ counsel. 	Plaintiffs initially sought fees
totaling $22,899.50 for 125.4 hours spent in prosecuting the case, plus $834.85 in
expenses, $132 in costs, and post-judgment interest. 	Defendants responded that
Plaintiffs’ requested fees were “unreasonable, both with respect to the hourly rates and
the hours expended.”
{4} 	Without holding a hearing on Plaintiffs’ motion, the district court entered an
order awarding Plaintiffs nominal damages, $5000 in attorney fees, and $794.04 in
costs. 	The court explained its large reduction of the requested fees by noting that
Plaintiffs had filed a complaint, a motion, and a reply, and that there were no hearings
held. 	The court noted that Plaintiffs’ counsel “hold themselves out as having an
expertise in this area of law and being very experienced” and that “[i]t is this expertise
and experience that they claim justified the strikingly high hourly rates for the
attorneys and support staff in their office ($350, $225, and $165 per hour for

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attorneys, and $100 per hour for support staff).” 	The court then observed that
counsel’s expertise and experience meant that “a minimal amount of time should be
needed to draft the required pleadings.”
{5} 	The district court went on to observe that “Plaintiff[s’] hours are the equivalent
of working all day, every week day, for nearly three weeks to produce the limited
pleadings in this case.” The court stated that it declined to analyze counsel’s bill “line
by line” and that counsel’s bill was “so unreasonable in both the hourly fee rate and
the hours billed that it is no help at all to the [c]ourt in determining reasonable fees.”
The court noted that “an attorney who charged $5000 for nothing more than filing a
[c]omplaint was found to have charged an excessive fee,” citing In re Roberts-Hohl,
116 N.M. 700, 866 P.2d 1167 (1994) (per curiam).
{6} 	Plaintiffs filed a motion for reconsideration in which they sought, in addition
to their initial fee request, fees in the amount of $7777 and expenses of $485.16.
Following a hearing, the district court denied the motion without explanation. This
appeal followed.
DISCUSSION
{7} 	Plaintiffs argue that the district court’s reduction of the attorney fees billed was
arbitrary because it failed to consider the amount of reasonable fees necessary to
achieve success, it failed to consider the billing records submitted, and it relied on a

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misapprehension of the issues in the case. They maintain that arbitrary reductions of
attorney fees, such as the district court’s reduction, will discourage citizens from
protecting their rights under IPRA. 	Plaintiffs also contend that the district court
erroneously failed to award all of the costs incurred, gross receipts taxes, and post-
judgment interest. Finally, Plaintiffs ask for an award of attorney fees incurred in this
appeal.
Attorney Fees Incurred in the District Court
{8} 	IPRA provides that “[t]he court shall award damages, costs and reasonable
attorneys’ fees to any person whose written request has been denied and is successful
in a court action to enforce the provisions of [IPRA].” 	Section 14-2-12(D).
Therefore, it is undisputed that Plaintiffs were entitled to an award of damages, fees,
and costs. Before considering the merits of Plaintiffs’ arguments, we review IPRA
and its purpose in order to provide context.
{9} 	IPRA “embodies New Mexico’s policy of open government,” 	Cox v. N.M.
Dep’t of Pub. Safety, 2010-NMCA-096, ¶ 5, 148 N.M. 934, 242 P.3d 501, cert.
quashed, 150 N.M. 765, 266 P.3d 634, and its purpose is to ensure “that all persons
are entitled to the greatest possible information regarding the affairs of government
and the official acts of public officers and employees.” Section 14-2-5. Given this
purpose, it is clear that IPRA’s provision mandating an award of damages, costs, and

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attorney fees to a successful litigant is an example of fee shifting—i.e., the imposition
of the cost of litigation on the party who unsuccessfully resists a statutorily-
compelled, socially beneficial action. 	See, e.g., In re N.M. Indirect Purchasers
Microsoft Corp. Antitrust Litig., 2007-NMCA-007, ¶ 34, 140 N.M. 879, 149 P.3d 976
(observing that the lodestar method of calculating attorney fees “is ordinarily used in
statutory fee-shifting cases because it provides adequate fees to attorneys who
undertake litigation that is socially beneficial”).
{10} 	Generally, we review an award of attorney fees for abuse of discretion. Id. ¶ 6.
However, “[a] discretionary decision based on a misapprehension of the law is an
abuse of discretion that must be reviewed de novo.” Id. If the trial court has correctly
applied the law to the facts, “we review a discretionary decision for an abuse of
discretion and reverse only if it [is] contrary to logic and reason.” Id. (alteration in
original) (internal quotation marks and citation omitted).
{11} 	Plaintiffs contend that the district court abused its discretion in awarding only
$5000 in fees because it failed to follow established guidelines for determining
attorney fees, it refused to consider the evidence offered in support of the motion for
fees, and it relied on unsupported factual assertions. 	In making their fee request,
Plaintiffs submitted detailed billing statements showing dates, work performed, and
time expended. 	The first statement, which reflected time expended from the time

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Plaintiffs 	first 	sought 	disclosure 	of 	the 	District’s 	records 	through 	beginning
preparation of the motion for attorney fees, comprised nine pages attributable to fees
incurred and reflected 125.4 hours of labor and a total of $22,899.50. The second
statement reflected time expended from completion of the motion for attorney fees
through completion of the reply in support of the motion, comprised three pages, and
reflected 51.1 hours of labor and a total of $7777. 	The two statements together
reflected 176.5 hours of labor for a total fee of $30,676.50.
{12} 	The district court gave several reasons justifying its reduction of the fee to
$5000. These reasons can be summarized as the district court’s view that Plaintiffs’
counsel charged “strikingly high hourly rates,” filed only four pleadings and, given
counsel’s expertise in the area of IPRA, should have been able to draft the pleadings
in far less time than they claimed to have expended. The court then concluded that it
could have analyzed counsel’s bill “line by line to determine what amount of time was
reasonable to spend on each task,” but it “decline[d] to do so” because “[i]t is apparent
that the total fee . . . is facially unreasonable and the Plaintiffs are looking for a
windfall in the award of attorney fees.” The court cited Roberts-Hohl as standing for
the proposition that a $5000 fee for filing a complaint is excessive, and then
“exercise[d] its discretion to determine the reasonableness of fees and award[ed] the
amount of $5000 for attorney fees.”

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{13} 	The district court’s determination of fees is without basis in law or fact. While
an award of attorney fees is discretionary, “the exercise of that discretion must be
reasonable when measured against objective standards and criteria.” 	Lenz v.
Chalamidas (Lenz I), 109 N.M. 113, 118, 782 P.2d 85, 90 (1989). Those criteria may
include:
(1) the time and labor required—the novelty and difficulty of the
questions involved and skill required; (2) the fee customarily charged in
the locality for similar services; (3) the amount involved and the results
obtained; (4) the time limitations imposed by the client or by the
circumstances; and (5) the experience, reputation and ability of the
lawyer or lawyers performing the services.
Id. In the present case, the district court expressly refused to consider the evidence
presented on the first two factors. The court declined to review the billing statements
in any detail in order to familiarize itself with the time and labor required, and it flatly
rejected the affidavit of Paul Bardacke, who attested that he was familiar with the
“ranges of the prevailing rates charged by leading attorneys in New Mexico” and that
“the rates requested [are] reasonable and customary compared to fees charged in New
Mexico by attorneys for similar work and with similar experience.” The court stated
that Bardacke “himself charges the unreasonable fee of $450 per hour. At this rate an
attorney could make a handsome living working only one hour a day.” 	The task
before the court was not the reasonableness of Bardacke’s hourly rate but whether

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Plaintiffs’ counsel’s hourly rate was reasonable. The court impermissibly disregarded
Bardacke’s affidavit on the salient issue.
{14} 	The district court similarly failed to consider the evidence related to the
requested attorney fees and relied instead on its own assessment of what it considered
to be a reasonable hourly rate and a reasonable amount of time expended. Although
a court may rely on its own knowledge of the rates normally charged in the area, that
knowledge should be used only to supplement the evidence regarding a reasonable
hourly rate. 	See Microsoft, 2007-NMCA-007, ¶ 65 (explaining that “[t]he judge,
familiar with the case and the normal rates in the area, may rely on his own knowledge
to supplement the evidence regarding a reasonable hourly rate”). We are aware of no
authority permitting a court to refuse to consider evidence presented on the issue of
attorney fees, which is what the court did in the present case.
{15} 	It is also clear that the district court did not have a clear grasp of the time and
labor involved in litigating the case to a successful conclusion for Plaintiffs. 	The
court stated that Plaintiffs filed only a complaint, a motion, a reply, and a related
motion to strike an affidavit filed by Defendants. 	In fact, in addition to the four
pleadings just mentioned, Plaintiffs filed a nine-page brief in support of their motion
for partial judgment on the pleadings, a seven-page brief in support of their motion to
strike, a conditional reply in support of the motion to strike, a motion with fifty pages

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of exhibits asking the court to take judicial notice of pleadings in related cases, a
motion for the award of attorney fees, damages, and expenses with thirty-two pages
of exhibits, a reply in support of the fees motion, a motion for reconsideration and
eleven-page supporting brief, plus two other minor motions for extension.
{16} 	The district court also failed to consider the novelty of the issues addressed in
Plaintiffs’ pleadings. For example, the court noted that counsel billed 48 minutes for
preparing the summons and stated, “Assuming that the one[-]page form of summons
is already on the computer of Plaintiff[s’] counsel, . . . then the only work would be
filling in the case caption, which took this [c]ourt less than a minute to accomplish at
the top of this [o]rder, and then filling in the name and address of the three people to
be served.” This observation overlooks the explanation offered in attorney Matthew
Hoyt’s affidavit that “[a]lthough my law firm has experience with IPRA cases, it has
not, to my knowledge, ever brought suit against a New Mexico public school district
[and] a public school superintendent” and, therefore, it was necessary to conduct
research to determine how to serve those parties. In response to the district court’s
dismissive assessment of the time devoted to the motions filed, Hoyt also attested that
Defendants raised novel defenses that required considerable research in areas on
which there was little New Mexico law.

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{17} 	The district court did not “determine the time reasonably necessary to provide
the services required.” Lenz v. Chalamidas (Lenz II), 113 N.M. 17, 19, 821 P.2d 355,
357 (1991). Instead, it awarded an arbitrary fee of $5000, which it apparently justified
by relying on Roberts-Hohl. Roberts-Hohl bears no relation to the issues in this case.
Roberts-Hohl was an attorney disciplinary proceeding in which the clients had paid
their attorney a retainer of $5000 to pursue a tax refund. 116 N.M. at 701, 866 P.2d
at 1168. The attorney filed a complaint and then did nothing further. Id. at 701-02,
866 P.2d at 1168-69. 	The court ultimately dismissed the complaint for lack of
prosecution, but the attorney failed to advise his clients of this fact. Id. at 702, 866
P.2d at 1169. Our Supreme Court held that the attorney’s conduct violated numerous
rules of the Code of Professional Conduct and, further, that “[b]y accepting a $5000
retainer and taking no discernable action apart from filing a complaint, he also
charged a clearly excessive fee in violation of Rule 16-105 [NMRA].” Roberts-Hohl,
116 N.M. at 702, 866 P.2d at 1169. We fail to see how a fee deemed excessive in a
disciplinary case in 1994 could provide any guidance to the district court addressing
the fee application in the present case.
{18} 	The district court also failed to consider the fact that this is a case under IPRA,
which embodies distinct public policy goals that must be considered when fees are
awarded in accordance with that statutory scheme. Our Supreme Court has instructed

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that “[w]e must construe IPRA in light of its purpose[,]” which is “to ensure that the
public servants of New Mexico remain accountable to the people they serve.” 	San
Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶¶ 14, 16, 150 N.M.
64, 257 P.3d 884. “IPRA includes remedies to encourage compliance and facilitate
enforcement[,]” id. ¶ 12, and the provision requiring an award of attorney fees to a
member of the public who prevails in an IPRA case is one of those remedies.
{19} 	As 	with 	other 	fee-shifting 	statutory 	schemes, 	IPRA’s 	fee 	requirement
encourages individuals to enforce IPRA on behalf of the public. 	See Jones v. Gen.
Motors Corp., 1998-NMCA-020, ¶ 25, 124 N.M. 606, 953 P.2d 1104 (explaining, in
a case filed under the Unfair Practices Act, that awarding damages and attorney fees
to a successful plaintiff “reimburses the individual plaintiff and his counsel for
enforcing the Act on behalf of the general citizenry” (internal quotation marks and
citation omitted)); see also Lucero v. Aladdin Beauty Coll., Inc., 117 N.M. 269, 271,
871 P.2d 365, 367 (1994) (noting that “one of the policies embodied in the [Human
Rights] Act is to encourage lawyers to take cases involving alleged violations of the
Act” by providing for the award of attorney fees). 	Consequently, attorney fees
awarded “should reflect the full amount of fees fairly and reasonably incurred by [the
p]laintiff in securing an award” under the statutory scheme. Jones, 1998-NMCA-020,

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¶ 25. 	Without this incentive, prospective plaintiffs might have difficulty pursuing
their claims and enforcing IPRA on behalf of the public. Id.
{20} 	In statutory fee-shifting cases like this one, the lodestar method for determining
attorney fees is generally used “because it provides adequate fees to attorneys who
undertake litigation that is socially beneficial, irrespective of the pecuniary value to
the [claimant].” 	Microsoft, 2007-NMCA-007, ¶ 34. 	“A lodestar is determined by
multiplying counsel’s total hours reasonably spent on the case by a reasonable hourly
rate.” 	Id. 	“The lodestar provides an objective basis for valuing the attorney’s
services[.]” Id.
{21} 	The district court in the present case failed to utilize the lodestar method or any
objective basis for determining a reasonable award of attorney fees, and we therefore
hold that it abused its discretion. We reverse the district court’s award of attorney fees
and remand for a recalculation based on the evidence presented by Plaintiffs,
including their billing statements and the Bardacke and Hoyt affidavits, as well as any
evidence presented by Defendants. 	The district court should utilize the lodestar
method as a starting point for its calculation, and it should enter findings of fact and
conclusions of law based on the evidence, taking into account the factors listed in Lenz
I and the policies underlying IPRA.

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Defendants’ Arguments
{22} 	Before considering the other issues Plaintiffs raise in this appeal, we briefly
address Defendants’ argument that Plaintiffs waived their right to challenge the
district court’s fee award because they failed to timely request findings of fact and
conclusions of law. Defendants’ argument is without merit because it relies on cases
decided under a prior version of Rule 1-052 NMRA. See Cockrell v. Cockrell, 117
N.M. 321, 324, 871 P.2d 977, 980 (1994) (quoting former Rule 1-052(B)(1)(f) NMRA
(1986) as stating, “‘A party will waive specific findings of fact and conclusions of law
if he fails to make a general request therefor in writing, or he fails to tender specific
findings and conclusions.’”). 	Rule 1-052 was rewritten in 2001, and the current
version “omits reference to ‘preservation of error’ as this is a matter for the appellate
rules.” Rule 1-052 comm. cmt. 3.
{23} 	Defendants also argue that courts should have the discretion to “exercise a more
stringent approach in deciding the proper amount of attorney[] fees” in cases where
a public body’s failure to disclose public records is done in good faith. We are not
persuaded. There is nothing in IPRA suggesting that good faith non-disclosure has
any effect on an award of attorney fees, and the district court did not mention good
faith in connection with its fee award.

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Costs, Gross Receipts Taxes, and Post-Judgment Interest
{24} 	Plaintiffs contend that the district court erroneously calculated the costs to be
awarded and failed to award them gross receipts taxes and post-judgment interest.
Defendants respond that Plaintiffs failed to preserve these issues for appeal. 	We
conclude that Plaintiffs preserved these matters by raising them in their motion for
attorney fees, expenses, and post-judgment interest. 	Contrary to Defendants’
contention, it was not necessary for Plaintiffs to reiterate their request for these awards
in their motion for reconsideration. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496,
745 P.2d 717, 721 (Ct. App. 1987) (explaining that “[t]o preserve an issue for review
on appeal, it must appear that [the] appellant fairly invoked a ruling of the trial court
on the same grounds argued in the appellate court”).
{25} 	On the issue of costs, Plaintiffs claim that the district court erroneously failed
to award $132 representing the district court filing fee and $485.16 in costs incurred
after the motion for attorney fees was filed but before the reply in support of the
motion was filed. It appears that the district court may have overlooked the charge for
the filing fee because it awarded all other costs submitted with Plaintiffs’ initial
motion for fees, but it failed to award the filing fee charge, which was listed separately
from the other costs. As for costs incurred between the motion for fees and the reply,
those costs may be awarded if the district court on remand deems them to be

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reasonable and necessary. 	In any event, when the district court recalculates the
attorney fee award, it should also reconsider its award of costs to ensure that all
reasonable and necessary costs are included.
{26} 	With respect to Plaintiffs’ request for their gross receipts taxes, such taxes were
owed on attorney fees incurred. Consequently, it makes sense that Plaintiffs would
be entitled to all gross receipts taxes attributable to the fees ultimately awarded on
remand, and we direct the district court to include such taxes in its recalculation of the
fee award.
{27} 	As for post-judgment interest, NMSA 1978, Section 56-8-4(D) (2004) prohibits
such an award against a school district. That statutory provision states that “[t]he state
and its political subdivisions are exempt from the provisions of this section [allowing
post-judgment interest] except as otherwise provided by statute or common law.” Id.
Because no statute authorizes post-judgment interest against a school district, such an
award is not allowed. See Franco v. Carlsbad Mun. Schs., 2001-NMCA-042, ¶ 25,
130 N.M. 543, 28 P.3d 531 (explaining that because “no statute expressly authorizes
[the] imposition of post-judgment interest against a school district,” Section 56-8-4(D)
prohibits such an award).

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Attorney Fees on Appeal
{28} 	Plaintiffs seek recovery of the attorney fees incurred in this appeal. Because
Plaintiffs are the prevailing party on every issue except that involving post-judgment
interest, they are entitled to their costs, which include “reasonable attorney fees for
services rendered on appeal in causes where the award of attorney fees is permitted
by law.” Rule 12-403(B)(3) NMRA. IPRA allows the award of reasonable attorney
fees on appeal in this case. Section 14-1-12(D). On remand, Plaintiffs should present
evidence of their fees and costs on appeal, Defendants may respond, and the district
court should calculate an additional fee award in a manner consistent with the method
we have described in this Opinion for the calculation of fees incurred in the district
court.
CONCLUSION
{29} 	For the foregoing reasons, we reverse the district court’s award of attorney fees
and remand for recalculation of the fee award consistent with the direction provided
in this Opinion. We also instruct the district court to include in its fee award an award
of gross receipts taxes attributable to the fees, to reconsider its award of costs to
ensure that all reasonable and necessary costs are included, and to enter an award of
costs and attorney fees incurred in connection with this appeal. We affirm the court’s
denial of post-judgment interest.

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{30} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
CELIA FOY CASTILLO, Chief Judge
J. MILES HANISEE, Judge