NO Barriers INC, et al v. Brinker Chili's TX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-10791
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NO BARRIERS, INC.; LESLIE GREER,
Plaintiffs-Appellants,
VERSUS
BRINKER CHILI’S TEXAS, INC., D/B/A CHILI’S GRILL & BAR,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
September 5, 2001
Before JOLLY, SMITH, and WIENER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
No Barriers, Inc., a nonprofit organization
of persons who use wheelchairs, and Leslie
Greer, a disabled person who uses a
wheelchair for mobility (collectively “NBI”),
sued Brinker Chili’s Texas, Inc. (“Brinker”),
under the Americans with Disabilities Act
(“ADA”) for failing to remove architectural
barriers, as allegedly required by 42 U.S.C.
§ 12182(b)(2)(A)(iv), in several restaurants.
The district court held in favor of Brinker and
awarded it $8,000 in attorney’s fees as a pre-
vailing party pursuant to FED. R. CIV. P. 54(d)-
(2)(A) and 42 U.S.C. § 12205.1 NBI appeals
1 The statute states in full:
In any action or administrative
proceeding commenced pursuant to this
chapter, the court or agency, in its
discretion, may allow the prevailing party,
other than the United States, a reasonable
attorney’s fee, including litigation expenses,
(continued...)

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only the fact and amount of the fee award.
I.
Under the ADA, a plaintiff may sue for
injunctive relief to order alterations to
facilities. 42 U.S.C. § 12188(a)(2). The
statute applies, however, only to “any person
who owns, leases (or leases to), or operates a
place of public accommodation.” 42 U.S.C.
§ 12182(a).2 The parties stipulated that the
restaurants are places o f public
accommodation subject to the ADA3 and that
Brinker Texas, L.P. (“Brinker Texas”), the
limited partner of which Brinker is the general
partner, owns them.
In pretrial motions, Brinker repeatedly de-
nied that it owned, leased, or operated a
Chili’s restaurant. Rather, it identified Brinker
Texas as the owner and a potential party.4
Although NBI agreed that Brinker Texas was
an owner, it never joined it as a party.
NBI claims that Brinker, as general partner,
was an “operator” within the meaning of the
ADA, but Brinker contends that this theory
merely exhibits a post hoc rationalization.
Despite Brinker’s repeated protestations and a
strong suggestion from the district court, two
weeks before trial, that NBI should amend its
complaint to include Brinker Texas, NBI wait-
ed until the morning of trial to seek leave to
amend. The court denied the motion and
found that Brinker was not the operator of a
place of public accommodation.
II.
We review an award of attorney’s fees for
abuse of discretion and the underlying factual
findings for clear error. See United States v.
Miss., 921 F.2d 604, 609 (5th Cir. 1991). The
ADA states that the court may award a
prevailing party reasonable attorney’s fees; it
does not specify when such an award is
appropriate. See 42 U.S.C. § 12205. Each
circuit that has addressed the issue has
concluded that the considerations that govern
fee-shifting under § 706(k) of title VII or
under 42 U.S.C. § 1988 apply to the ADA’s
fee-shifting provision, because the almost
identical language in each indicates Congress’s
1(...continued)
and costs, and the United States shall be
liable for the foregoing the same as a private
individual.
42 U.S.C. § 12205.
2 Section 302(a) of the ADA provides in
pertinent part:
[N]o individual shall be discriminated
against on the basis of disability in the full
and equal enjoyment of . . . [the] facilities .
. . or accommodations of any place of public
accommodation by any person who owns,
leases (or leases to), or operates a place of
public accommodation.
42 U.S.C. § 12182.
3 The ADA defines “a restaurant, bar, or other
establishment serving food and drink” as a “public
accommodation,” provided its operations affect
commerce. 42 U.S.C. 12181(7)(B).
4 NBI also alleged violations of the ADA in
various parking facilities, but Brinker stated that it
had no obligation or right to maintain them, poin-
ting out that (1) the restaurant was erected on a
ground lease covering a small portion of a com-
mercial center, (2) the lease of premises does not
include any of the center’s parking area, and
(3) Brinker’s lessor remains responsible for the en-
tire parking area of the center, including that
adjacent to the restaurant.

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intent to enforce them similarly.5 Under this
standard, a prevailing defendant may not
receive fees “unless a court finds that [the
plaintiff’s] claim was frivolous, unreasonable,
or groundless, or that the plaintiff continued to
litigate after it clearly became so.” Christians-
burg Garment Co. v. EEOC, 434 U.S. 412,
422 (1978).
Without belaboring the merits of an issue
not before usSSbecause it has not been ap-
pealedSSwe must examine briefly the argument
to evaluate whether it is frivolous. NBI
contends that under Texas law, it is not
required to join the limited partner to sue the
general partner as an operator of a place of
public accommodation. It correctly observes
that a general partner of a limited partnership
has the same rights and responsibilities as a
general partner without limited partners. See
TEX. REV. CIV. STAT. art. 6132a-1, § 4.03.
NBI claims that no Texas case has
addressed the precise issue of required joinder
presented here. Even if this is correct, Texas
law requires that, to impose liability on a gen-
eral partner of a limited partnership, the
plaintiff must plead and prove a cause of
action against that entity in its capacity as the
general partner.6
The district court found that NBI sued
Brinker in its individual corporate capacity,
not in its capacity as general partner. NBI has
not challenged this finding on appeal. Thus,
even if NBI had a colorable argument that it
need not have joined Brinker Texas, it failed to
sue Brinker in the correct capacity.
While maintaining that Texas law does not
require the joinder of the limited partner, NBI
relies more heavily on the fact that whether it
could sue Brinker without joining Brinker
Texas is an open question under the ADA. In-
deed, the district court noted that “[t]his is a
case of first impression under both the [ADA]
and the Texas Architectural Barriers Act as to
the requirements of pleading the capacity of a
general partner in a limited partnership.”
NBI asserts that Brinker, as general
partner, “operates” the restaurant within the
meaning of the ADA. An entity “operates” a
place of public accommodation for purposes of
the ADA if it “specifically controls the
modifications of the [buildings] to improve
their accessibility to the disabled.” Neff v. Am.
Dairy Queen Corp., 58 F.3d 1063, 1066 (5th
Cir. 1995). Brinker continually alleged that it
did not have such control, and NBI presented
no evidence to the contrary. Because NBI
sought injunctive relief requiring the
restaurants to alter their facilities, the district
court rightly thought it important that NBI sue
the entity with the control needed to make the
changes.
Regardless of the viability of the pleading
argument or of the theory that a general
partner “operates” a place of public
accommodation under the ADA, existing
5 See Small v. Dellis, 211 F.3d 1265, 2000 U.S.
App. LEXIS 7739 (4th Cir. 2000); Bruce v. City
of Gainesville, 177 F.3d 949, 951-52 (11th Cir.
1999); Bercovitch v. Baldwin School, Inc., 191
F.3d 8, 11 (1st Cir. 1999); see also Adkins v.
Briggs & Stratton Corp., 159 F.3d 306, 307-08
(7th Cir. 1998); Summers v. A. Teichert & Son,
Inc., 127 F.3d 1150, 1154 (9th Cir. 1997).
6 See Texaco v. Wolfe, 601 S.W.2d 737 (Tex.
Civ. App.SSHouston [1st Dist.] 1980, writ ref’d
n.r.e.); Shawell v. Pend Oreille Oil & Gas Co.,
(continued...)
6(...continued)
823 S.W.2d 336 (Tex. App.SSTexarkana, 1992,
writ denied).

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precedent neither supported nor absolutely
foreclosed these interpretations. Thus, had
NBI sued Brinker in the correct capacity and
presented factual support for its theory, the
court might not have deemed frivolous its
decision to proceed to trial.7 NBI, however,
made no evidentiary showing that Brinker
owned, leased, or operated a Chili’s in its
individual corporate capacity nor that it
exercised any control over the architectural
design of the property.
Significantly, the court shifted the
attorney’s fees only for the trial portion of the
litigation. Thus, the court penalized NBI only
for continuing the trial after it had failed re-
peatedly to sue the proper party; before trial,
NBI could have corrected the defect by
amending its complaint. Because, however,
NBI utterly failed to sue the proper party and
did not present any evidence supporting its
theory at trial even had it pleaded properly, the
court did not abuse its discretion in finding
that NBI unreasonably continued to litigate.8
III.
NBI contests the calculation of fees. We
review a determination of reasonable hours
and rates for clear error and the application of
the relevant factors for abuse of discretion.
La. Power & Light Co. v. Kellstrom, 50 F.3d
319, 329 (5th Cir. 1995).
NBI contends that the court erred in failing
to calculate a “lodestar” amount determined by
the reasonable number of hours expended
multiplied by the reasonable hourly rates for
the attorneys involved. See Hensley v. Ecker-
hart, 461 U.S. 424 (1983). The “lodestar”
may be adjusted according to (1) the time and
labor required for the litigation; (2) the novelty
and difficulty of the questions presented; (3)
the skill required to perform the legal services
properly; (4) the preclusion of other em-
ployment by the attorney by acceptance of the
case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations
7 The court noted:
[T]he law in Texas would have allowed you to
have served Brinker Texas, LP by serving the
general partner had you clarified that was what
you were doing, but you did not clarify that. . . .
I know of no authority that would hold the
general partner liable for the acts of the limited
partnership, as opposed to you’re [sic] having
been able to serve the limited partnership by
serving the general partner, which you could
have done had you clarified that’s what you
were doing.
8 Cf. Durrett v. Jenkins Brickyard, Inc., 678
F.2d 911 (11th Cir. 1982) (awarding fees to a de-
fendant that had been forced to continue litigation
solely because of plaintiff’s failure to correct an
error); Sullivan v. Sch. Bd., 773 F.2d 1182, 1189
(11th Cir. 1985) (observing that cases in which a
finding of frivolity is sustained typically include a
plaintiff’s failure to produce evidence in support of
his claims). NBI correctly observes that the court
could have chosen not to award fees. See, e.g.,
Adkins v. Briggs & Stratton Corp., 159 F.3d 306,
307-08 (7th Cir. 1998) (“Nothing in 12205
suggests that the court must award fees to a party
defending against a frivolous claim . . . .”);
Summers v. A. Teichert & Son, Inc., 127 F.3d
1150 (9th Cir. 1997) (refusing to award fees to de-
fendant where ADA plaintiff had failed to ask for
accommodation for his disability). This does not
mean, however, that the court abused its discretion
in choosing the opposite course.

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imposed by the client or circumstances; (8) the
amount involved and the result 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. Shipes v. Trinity Indus., 987
F.2d 311, 319-20 (5th Cir. 1993) (citing
Johnson v. Ga. Hwy. Express, Inc., 488 F.2d
714 (5th Cir. 1974)). Moreover, NBI asserts
that because Brinker’s application for fees did
not state how long the participating attorneys
had been practicing law, the court could not
(and did not) calculate a reasonable hourly
rate.
Brinker presented details of the work com-
pleted and the rates charged by each attorney,
a total of 818.8 hours and $112,796.
Although the court did not provide a specific
calculation, it awarded only a small fraction of
the amount requestedSS$8,000.
When a prevailing party submits a fee ap-
plication without proper documentation, the
court has the discretion to reduce the award to
a reasonable amount.9 Moreover, the court
need not explicitly calculate the lodestar to
make a reasonable award.10 In Wegner, as
here, the party challenging the attorney’s fees
did not explain why they were unreasonable.
Id. at 823. The court upheld the award,
stating:
Under these circumstances, given the
district court’s familiarity with the legal
work done on this relatively
straightforward [legal issue] as well as
our deferential standard of review, we
are constrained to hold that the district
court had sufficient information before it
to determine reasonable hours.
Id. Similarly, the district court acted within its
discretion in granting a small portion of the
fees requested on the information before it.11
AFFIRMED.
9 Von Clark v. Butler, 916 F.2d 255, 259 (5th
Cir. 1990) (“Absent a reliable record of the time
expended on the prevailing claim, it is within the
discretion of the district court to determine a rea-
sonable number of hours that should have been
expended.”).
10 See Wegner v. Standard Ins. Co., 129 F.3d
814, 822-23 (5th Cir. 1997) (concluding that even
though a prevailing party submitted only a
summary of total hours expended and hourly rates,
this data was “not so vague and incomplete that the
district court was precluded from conducting a
(continued...)
10(...continued)
meaningful review”).
11 At oral argument, Brinker stated that it will
not seek additional attorney’s fees if successful on
this appeal.

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