
    INTERDICTION OF F.T.E.
    No. 24669-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1993.
    Rehearing Granted April 29, 1993.
    Opinion on Rehearing Aug. 11, 1993.
    Mental Health Advocacy Service by E. Paul Young, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Lawrence L. Jones, Frederick R. Parker, Jr., Shreveport, for plaintiff-appellee.
    Before LINDSAY, HIGHTOWER and BROWN, JJ.
   LINDSAY, Judge.

The respondent, F.T.E., appeals a trial court judgment ordering his estate to bear the cost of attorney fees and expenses incurred by the petitioner in connection with a limited interdiction. We amend and, as amended, affirm the trial court judgment.

FACTS

This case was previously before the court following the involuntary judicial commitment and interdiction of F.T.E. See Interdiction of F.T.E., 594 So.2d 480 (La.App.2d Cir.1992). F.T.E., who is in his mid-50’s, suffers from multiple sclerosis, a degenerative neurological disorder. He has been bedridden for more than 10 years, is totally incontinent, cannot bathe or turn in bed without assistance and has difficulty holding or dialing a telephone. He also has difficulty seeing to read. F.T.E. has sizea-ble financial holdings and, for many years, lived in his own home with the aid of round-the-clock sitters. He managed his own financial affairs. His mother, who has Alzheimer’s disease, also lived in the home. F.T.E.’s only other close relative is a brother, the petitioner, who lives in another state.

After a dispute with one of his regular sitters, F.T.E. was involuntarily admitted to Humana Hospital-Brentwood, pursuant to an emergency certificate issued under LSA-R.S. 28:53. F.T.E.’s brother then petitioned for judicial commitment and interdiction. F.T.E. was later transferred from Brentwood to a nursing home. Following several hearings and numerous conferences in the trial court, judgments were entered committing F.T.E. to the nursing home and ordering an interdiction.

F.T.E. appealed the judgments of judicial commitment and interdiction. The matters were consolidated on appeal. The case was argued twice before this court. A divided five-judge panel found that the trial court erred in ordering the involuntary judicial commitment of F.T.E. and a full interdiction of his person and property.

The majority found that an involuntary judicial commitment was not proper in this case. Citing LSA-R.S. 28:55 E, this court stated that before a person may be subject to a judgment of civil commitment, the petitioner must show by clear and convincing proof that the respondent is dangerous to himself or others, or is gravely disabled as a result of mental illness. We found that although F.T.E. is severely disabled physically, he is not gravely disabled due to a serious mental illness, rendering him unable to survive safely in freedom and requiring care and treatment. We found that F.T.E. was able to provide for his physical needs through the use of sitters and nurses. Therefore, we reversed the judgment ordering involuntary commitment.

We also held that the trial court erred in imposing total interdiction on F.T.E. We found that, even though he is not physically able to attend to business matters, he is mentally able to do so, and could manage well with the help of agents. We found that F.T.E.’s holdings, which consist primarily of stocks and bonds, are particularly well suited to management through agents.

However, we held that F.T.E.’s inability to accept the fact that he suffers from multiple sclerosis and his occasional refusal to follow the orders of his physicians, required the limited interdiction of his person. Therefore, we modified the judgment of interdiction to provide for limited interdiction over the person, with appointment of a limited curator, and reversed that portion of the judgment calling for interdiction over F.T.E.’s financial affairs. The case was remanded to the trial court for an expedited evidentiary hearing to determine whether F.T.E.’s physical and mental condition had remained stable during the pen-dency of the proceedings. On remand, the trial court determined that there was no substantial change in the respondent’s condition.

In the prior appeal, F.T.E. challenged that part of the judgment awarding attorney fees to the petitioner in the interdiction and commitment proceedings. We found that although the reasons for judgment set forth by the trial court indicated that attorney fees would be assessed against F.T.E., no such award was made in the judgments appealed. Therefore, we held that the attorney fees had not been assessed against F.T.E.’s estate and the issue was not properly before the court on appeal.

On March 30, 1992, after our judgment of limited interdiction became final, the petitioner filed a motion for payment of attorney fees and expenses incurred during the course of the interdiction and commitment proceedings. The petitioner cited LSA-C.C. Art. 397 for the proposition that on every petition for interdiction, the costs shall be paid out of the estate of the defendant, if he is interdicted. The petitioner claimed that a total of $77,859.50 in attorney fees and $2,219.29 in expenses were incurred in connection with these proceedings.

A hearing on this issue was held on May 15, 1992. F.T.E. opposed the award of attorney fees and expenses, arguing that, on appeal, he was successful in obtaining a reversal on all issues except the interdiction, and that as to that issue, this court ordered only a limited interdiction over his person. He argued that under these circumstances, his estate should not be liable for the costs incurred by the petitioner, or at the most, that his estate should be liable only for a portion of the costs incurred.

On May 26, 1992, the trial court entered judgment, ordering the estate of F.T.E. to pay three-fourths of the attorney fees and all of the expenses incurred by the petitioner. The trial court found that, of the $77,-859.50 in attorney fees requested by the petitioner, one-quarter of this amount was attributable to the commitment proceedings, and that the petitioner was not entitled to recover attorney fees in connection with that portion of the ease. However, the trial court did find that, in connection with the interdiction proceedings, the estate of F.T.E. was liable for the costs incurred by the petitioner. Therefore, the trial court ruled that the estate of F.T.E. was required to pay the petitioner three-fourths of the attorney fees. This amount equals $58,394.62. The court also found that the estate of F.T.E. was to pay all of the other costs and expenses incurred by the petitioner in connection with the proceedings. This amount totaled $2,219.29. The judgment rendered against F.T.E. ordered that he pay a total of $60,613.91.

F.T.E. appealed this judgment. On appeal, he argues that the trial court erred in finding that attorney fees are to be included as costs in an interdiction proceeding. He claims that such fees are not to be included unless specifically provided for by statute or contract, and that there is no such provision in the present case. F.T.E. also argues that the trial court erred in holding that he should pay three-fourths of the attorney fees incurred by the petitioner where, on appeal, F.T.E. was successful in having the interdiction modified to provide only for a limited interdiction over his person, and was successful in having the commitment completely overturned. He also argues in his brief to this court that requiring an interdict to pay the attorney fees of the petitioner in such a proceeding creates an unconstitutional “chilling effect” on the right to defend against the áction. F.T.E. further argues that the attorney fees sought to be recovered in this case are not reasonable. He points out that the judgment against him for $60,613.91 calls for the payment of a large percentage of his total estate valued at approximately $800,-000.

ATTORNEY FEES AS AN ELEMENT OF COSTS

F.T.E. argues that the trial court erred in finding that attorney fees were included as an element of costs in the interdiction proceeding. He contends that attorney fees are not recoverable unless specifically provided for by statute or contract and that the statutes providing for payment of costs in interdiction proceedings do not include attorney fees. These arguments are merit-less.

The respondent cites several cases for the proposition that attorney fees are not recoverable unless authorized by statute or contract. See State, Department of Transportation and Development v. Williamson, 597 So.2d 439 (La.1992); Huddleston v. Bossier Bank and Trust, 475 So.2d 1082 (La.1985), Effner v. Ketteringham, 47 So.2d 331 (La.1950). However, these cases do not deal with interdictions. The statutes and jurisprudence dealing with interdiction proceedings have established the rule that attorney fees are included as costs of an interdiction and are taxable against the estate of the interdict.

LSA-C.C. Art. 397 provides:

On every petition for interdiction, the costs shall be paid out of the estate of the defendant, if he shall be interdicted, and by the petitioner, if the interdiction prayed for shall not be pronounced.

LSA-C.C.P. Art. 4551 provides:

The costs of an interdiction proceeding shall be paid from the estate of the defendant, if a judgment of interdiction is rendered. If judgment is rendered in favor of the defendant, the court, in its discretion may tax the costs, or any part thereof, against any party.

The notion that the estate of the interdict is to be taxed with costs, including attorney fees, is not new. In re Leech, 12 So. 126 (La.1893), dealt with the issue of whether the community of an interdict or his separate estate bears the cost of the interdiction. The court stated that the community is primarily responsible for the fees of an attorney who prosecutes a suit and obtains a judgment of interdiction. If there is no community, the estate of the interdict is liable.

In Doll v. Doll, 160 So.2d 323 (La.App. 4th Cir.1964), the court found that payment of attorney fees out of the estate of the interdict is merely indemnification in favor of the party who brought the interdiction proceedings and who would otherwise be personally obliged to pay the attorney he employed.

This court has previously ruled that attorney fees are an element of costs to be assessed in an interdiction proceeding. In Matter of Heard, 588 So.2d 799 (La.App.2d Cir.1991), the respondent, who had been interdicted for many years, brought suit to overturn the interdiction, an effort which was opposed by the curator. This court found that a limited interdiction was warranted and assessed attorney fees incurred by the curator against the estate of the limited interdict.

This court stated that the “[c]osts of an interdiction proceeding, including attorney fees, are assessed against the estate of the interdict if a judgment of interdiction is rendered; however, if the proposed interdict prevails, the court has discretion to tax any part of the litigation expenses against any party.” This court went on to state that where the judgment results in a limited interdiction, the court clearly has discretion to assess costs in the manner it considers most equitable.

The respondent in the present case argues that Matter of Heard, supra, is distinguishable from the instant case in that the curator in Heard had a duty to defend in good faith against the suit brought by the interdict to have the interdiction lifted. However, in light of the language in Matter of Heard, supra, and the prior jurisprudence indicating that a party who obtains a judgment of interdiction may recover attorney fees, we do not see the significance of the distinction. Therefore, we find that the trial court was correct in awarding fees to the petitioner in this suit which resulted in a limited interdiction of the respondent.

REASONABLENESS OF ATTORNEY FEE

The petitioner claims that $77,859.50 in attorney fees and $2,219.29 in expenses were incurred in connection with these proceedings and he sought to recover that amount. To the contrary, the respondent argues that the claimed amount of attorney fees and expenses is excessive, particularly where F.T.E. was ultimately successful in defeating all claims by the petitioner, except for the granting of a limited interdiction over his person.

The trial court found that one-quarter of the attorney fees were attributable to the judicial commitment proceedings for which the petitioner was not entitled to recover. Therefore, the trial court judgment awarded the sum of $58,394.62, amounting to three quarters of the total attorney fees incurred in connection with the proceedings. The trial court also awarded $2,219.29 in expenses.

At the hearing on the rule to assess attorney fees and costs, the petitioner presented evidence that lead counsel, Lawrence Jones, charged $150 per hour; co-counsel, Frederick Parker, Jr., charged $85 per hour until January 1, 1992, when his fee rose to $100 per hour; and the CPA who aided in inventorying the respondent’s property charged $50 per hour. Mr. Jones also testified that, because he was seriously ill at the beginning of the proceedings, he thought it necessary to enlist the aid of co-counsel in this case. Mr. Jones testified that 277 hours were expended in legal research and preparation of pleadings and briefs, 80.4 hours were spent attending hearings, 22 hours were spent in judicial conferences, 94 hours spent interviewing witnesses and 188 hours were expended in the administrative work of managing the assets. The evidence shows that 22 witnesses testified at trial, one original brief was prepared along with one reply brief and four briefs were submitted in response to motions and rules initiated by the respondent. Further, the attorney for the petitioner filed briefs and attended oral arguments in connection with the appeal of the case. A total of 661.4 hours were expended on behalf of the petitioner throughout the duration of the proceedings.

In the trial court, the respondent did not offer any evidence that the time spent or the amount charged was unreasonable. Finding that the petitioner and his counsel were in good faith and their actions were justified, the court based its award upon the itemized statements submitted by the petitioner.

The trial court stated:

[I]t is my opinion that when this matter began, it was done in good faith, and if it had not begun at all, there would be no Limited Interdiction. Yet, how can you determine whether Limited Interdiction is necessary or full Interdiction until you’ve tried all the evidence. I think it took all that to find out where we were.... I still say that I think, even if they had completely lost the Interdiction, they might be entitled to a fee, depending on the circumstances.

On appeal, the respondent now argues that the fees charged by the petitioner’s lawyers were excessive. Based upon our review of the record, we find that this argument has merit.

Courts may inquire into the reasonableness of attorney fees as part of their prevailing, inherent authority to regulate the practice of law. State, Department of Transportation and Development v. Williamson, 597 So.2d 439 (La.1992). A fee is clearly excessive when it is so grossly out of proportion for fees charged for similar services by other attorneys in the locality, as to constitute an unquestionable abuse of the attorney’s professional responsibility to the public. Deselle v. Moreauville State Bank, 553 So.2d 1067 (La.App.3rd Cir.1989), writ denied 558 So.2d 584 (La.1990).

The Louisiana Rules of Professional Conduct, Rule 1.5(A) sets forth guidelines on attorney fees. The rule provides as follows:

(a) A lawyer’s fee shall be reasonable.

The factors to be considered in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.

Factors similar to these have been applied in determining whether the attorney fee in an interdiction case was excessive. See Succession of Smith, 330 So.2d 402 (La.App.3rd Cir.1976).

We do not question the fact that the petitioner and his attorneys were in good faith and acted in what they perceived to be the best interest of the respondent. The record reveals, and we recognize, that prolonged litigation was involved and the petitioner found it necessary to bring both judicial commitment and interdiction proceedings. A number of hearings and briefs were required, and it was necessary to administer the respondent’s sizeable estate during the pendency of the proceedings. However, even recognizing these factors, when evaluating this case according to the factors enumerated above, we find that the attorney fee award made by the trial court is excessive.

In this case, the petitioner’s attorneys charged in excess of $77,000 for work on the commitment and interdiction proceedings. Although the litigation was complex and consumed many hours over a long period of time, we find that the trial court abused its discretion in making the attorney fee award. Given the facts and circumstances of this case, we find that an award of $36,000.00 is reasonable for the work performed by the attorneys in this case.

We note that the trial court awarded the petitioner all the expenses incurred in connection with the commitment and the interdiction, without subtracting one-fourth of the amount attributable to the commitment proceedings. On appeal, the respondent has not complained regarding the assessment of costs and expenses. Therefore, that issue is not properly before this court and the trial court ruling in this regard remains unaltered.

CONSTITUTIONALITY OF TAXING RESPONDENT WITH ATTORNEY FEES

Although not assigned as error, the respondent argues that “a rule of law which imposes upon a defendant in an initial interdiction the onerous prospect of bearing the expense of his own attorney and of the opposing party’s attorney, should he be assertive enough to defend against an effort to sentence him to ‘civil death’ constitutes such a burden on his right of access to the court system and to present a defense as to violate fundamental notions of fairness inherent in our constitutional concept of due process under the Louisiana and United States Constitutions.”

The respondent further argues that having to pay all costs, regardless of the outcome of the proceeding, has a “chilling effect” on the defendant’s ability to defend himself. He contends that a defendant in an interdiction proceeding would be compelled to consent to the demands of any relative or friend regardless of the remoteness of their relationship simply to avoid a significant percentage of his estate being consumed by litigation expenses. These arguments are meritless.

The scheme under which the defendant in an interdiction proceeding may be taxed with costs is set forth in LSA-C.C. Art. 397 and C.C.P. Art. 4551, quoted above. In order to attack the constitutionality of a statute, the issue must be specially pleaded to be considered by the court. Vaughn v. Department of Public Safety, 566 So.2d 1021 (La.App.3rd Cir.1990). The opponents who challenge the constitutionality of a statute bear the burden of proving clearly that a particular statute is barred by a constitutional provision. American Waste and Pollution Control v. State, Department of Environmental Quality, 588 So.2d 367 (La.1991).

A party questioning the constitutionality of an act must point to a specific provision of the constitution which clearly prohibits the legislative action. Moore v. Roemer, 567 So.2d 75 (La.1990). Statutes are presumed constitutional and any doubt is to be resolved in favor of the statute. State in the Interest of J.A.V., 558 So.2d 214 (La.1990).

The essential elements of “due process of law” are notice and an opportunity to be heard and to defend. Littleton v. Littleton, 514 So.2d 248 (La.App.5th Cir.1987).

F.T.E.’s constitutional attack in this case is vague. We note that he did not specially plead the unconstitutionality of the provisions allowing the costs of an interdiction to be taxed against a defendant in such proceedings. Therefore, any argument regarding the constitutionality of these provisions is not properly before this court.

However, we do not find that the respondent was deprived of due process of law. The respondent had an opportunity to be heard and to defend his position. Also, we do not find that the scheme for awarding costs in an interdiction creates a “chilling effect” on the right to defend against the action. The respondent argues that under the present provisions, the defendant in an interdiction proceeding risks being cast with costs regardless of the outcome of the proceedings and regardless of whether the proceedings were instituted in good or bad faith. We note that LSA-C.C. Art. 419 provides that:

He who petitions for the interdiction of any person and fails in obtaining such interdiction, may be prosecuted for and sentenced to pay damages, if he shall have acted from motives of interest or passion.

We find that the respondent’s constitutional attack on the interdiction proceeding is without merit.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment finding that the respondent, F.T.E., must bear a portion of the costs incurred by his brother, the petitioner, in this interdiction proceeding. However, we find that the fees incurred by the petitioner were excessive. We amend the trial court judgment and order that the respondent be cast with reasonable attorney fees incurred by the petitioner in connection with the interdiction proceeding in the amount of $36,000.00, together with expenses of $2,219.29. Judgment is recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the respondent, F.T.E., pay $36,000.00 in attorney fees incurred by the petitioner in connection with the interdiction proceedings, and pay the expenses of $2,219.29, together with judicial interest thereon, beginning April 6, 1992 until paid in full. Further, the respondent is cast with the costs of the proceedings in this court.

AMENDED AND AFFIRMED.

BROWN, J., dissents and assigns written reasons.

BROWN, Judge,

dissenting.

F.T.E. and his brother inherited equally. Despite his malady, F.T.E. prospered while his brother lost his wealth. This court found, in a previous appeal, that F.T.E. was mentally capable of managing his affairs and not gravely disabled within the contemplation of the commitment statute. We ordered a limited interdiction solely because F.T.E. at times refused to follow his physician’s treatment plan. We believed that his sitters should have the authority to assure' his physical well-being by enforcing the doctor’s orders. Thus, in this limited circumstance, the sitters would be answerable to someone other than F.T.E.

At the inception of this odyssey, F.T.E. lived at home and competently managed his affairs. In April 1990 F.T.E. was involuntarily taken from his home and thereafter denied control of his affairs. F.T.E. remained, at his expense, involuntarily confined to a nursing home until May 1992 when the trial court implemented this court’s opinion. Interdiction of F.T.E., supra.

This matter began when F.T.E.’s brother hired a law firm to gain control over F.T.E.’s affairs through commitment and interdiction proceedings. Legal representation for F.T.E. was provided by a public agency. When this case finally concluded, F.T.E. was returned to his home with full control of his affairs. F.T.E. agreed to a revocable trust to pay the expenses of the limited curatorship over his person. In short, the brother’s effort to take over F.T.E.’s estate failed.

The law firm retained by the brother demanded legal fees and expenses of approximately $80,000 for its services “on behalf of F.T.E.” The majority opinion significantly reduced to $38,219 the attorney fees and expenses awarded to the brother’s attorney. This amount, however, still consumes a large part of F.T.E.’s estate, an estate that is desperately needed to provide for the necessities demanded by his medical condition.

Because petitioner was not successful in his attempt to take over F.T.E.’s estate, he is not automatically entitled to costs which include legal fees. LSA-C.C. Art. 397; LSA-C.C.P. Art. 4551. Under the particular circumstances of this case, I believe the trial court abused its discretion in awarding any legal fees for F.T.E.’s unsuccessful brother.

In addition, as demonstrated by the facts of this case, to award attorney fees to the brother would violate the idea of fairness inherent in our constitution. The prospect of paying his own and his opponent’s attorney fees regardless of the outcome would have a “chilling effect” on a defendant’s desire to fight such an action.

I further find that the attorney fees even as reduced by this court are unreasonable. The claim of 661.4 hours expended on this case appears to be bloated. The issue at trial was primarily factual, yet 277 hours (34.6 eight hour days) were claimed for research and pleadings. The 94 hours (11.75 eight hour days) claimed for interviewing witnesses represented more than four hours per witness. Although their offices were within a block of the appeals court and Caddo courthouse, 80 hours (10 eight hour days) were claimed for in-court time. I cannot agree that this case necessitated the use of two attorneys. Common sense dictates that the billing exhibit for 661.4 hours be given no evidentiary weight.

In Caraway v. Royale Airlines, 559 So.2d 954 (La.App.2d Cir.1990), reversed in part, 579 So.2d 424 (La.1991), this court affirmed an award of $10,000 in attorney fees. Caraway involved complicated factual and legal issues; removal to federal court and then remand back to state court; two days in Dallas, Texas, taking medical depositions; a full day trial on the merits; and plaintiff’s attorney’s success in winning a large judgment which included approximately $78,000 in penalties. Caraway was also argued successfully by plaintiff in the Supreme Court where penalties were assessed against both insurers (the appellate court had allowed penalties against only one insurer). This interdiction proceeding was not comparable to Caraway. Accordingly, I believe the attorney fees awarded by this court are extravagant.

From April 1990 until May 1992, F.T.E. wrongly suffered a “civil death.” The expenses of his involuntary confinement were paid by F.T.E., including his brother’s travel expenses from Texas to Shreveport. It is not right for F.T.E. to now pay his unsuccessful brother’s legal fees.

I am reminded of Hemmingway’s The Old Man and the Sea, where Santiago lost his catch to sharks who tore off large chunks of meat, “like a pig to a trough.” I respectfully dissent.

Before NORRIS, LINDSAY, HIGHTOWER, BROWN and WILLIAMS, JJ.

ON APPLICATION FOR REHEARING

Rehearing granted.

LINDSAY and HIGHTOWER, JJ., would deny rehearing.

Before NORRIS, LINDSAY, HIGHTOWER, BROWN and WILLIAMS, JJ.

ON REHEARING

BROWN, Judge.

In his early 50’s, F.T.E. had always competently managed his financial affairs and through sitters had provided for his and his mother’s physical needs. His elder brother, who lived out-of-state, had no communication with F.T.E. for several years before manifesting his concern by petitioning for his commitment and interdiction.

Initially F.T.E. was involuntarily removed from his home and confined pursuant to an emergency certificate issued in April 1990. Thereafter, continued confinement was erroneously ordered via a petition for interdiction. After speaking with F.T.E.’s court-appointed attorney, petitioner’s attorney realized the mistake and the order was vacated by joint motion as being unauthorized in interdiction proceedings. F.T.E.'s brother then moved for his judicial commitment. The commitment proceedings were heard first and consisted of several hearings beginning in May 1990 and ending in July 1990. The court ordered F.T.E.’s involuntary commitment but did not sign a written judgment to that effect until December 28, 1990.

Hearings on the interdiction petition were held on September 14 and October 8, 1990. The same trial judge heard both the commitment and interdiction evidence. On December 28, 1990, the trial court signed a judgment deeming total interdiction necessary. When F.T.E. sought a new trial in both proceedings, petitioner moved for consolidation because they involved the same facts. The cases were consolidated and a new trial was denied.

On appeal the judicial commitment was reversed and only a limited interdiction allowed. We remanded for implementation of this court’s decision. In May 1992, after 25 months of involuntary confinement, F.T.E. was returned to his home and regained control over his finances. In the interim F.T.E.’s estate had paid for the cost of these proceedings and his confinement. Many of the stocks in his portfolio had been sold to fund these efforts. On remand the trial court ordered F.T.E.’s estate to pay attorney fees and expenses to petitioner in the amount of $60,613.91, a reduction from the $80,787.79 requested. This award has been appealed.

The trial court did not question the good faith of petitioner and his attorneys. We, however, have concerns about their indifference towards the cost of their efforts. According to petitioner’s testimony, he and F.T.E. inherited approximately $185,000 each. Petitioner testified that his estate is now worth about $50,000 while F.T.E.’s worth, at least at the start of these proceedings, had increased to more than $890,-000. Petitioner criticized F.T.E.’s financial acumen and stated that F.T.E. merely followed a conservative pattern established by their father. Petitioner did not believe F.T.E. was capable of managing his affairs.

Once the legal wheels were set into motion, no consideration was given by petitioner’s attorneys to the impact these proceedings would have on F.T.E. and his estate. At oral argument and in brief, petitioner’s attorneys believed their fees were collectable even if they would have consumed F.T.E.’s entire estate. We further note that F.T.E. was represented by a court-appointed attorney while his funds were controlled by petitioner and his attorneys.

At the hearing on the issue of attorney fees, Larry Jones, lead counsel for petitioner, testified, “I told Morris Evans [petitioner] when we started out it would probably cost about $5,000.” According to Jones, the legal fee exceeded $77,000 because of the actions of F.T.E.’s attorney. The record does not support this allegation. However, this statement embodies F.T.E.’s argument that an award of attorney fees to petitioner is incongruent with concepts of fairness and due process. Apparently, if F.T.E. had not contested petitioner’s efforts, the legal cost would only have been $5,000; however, because he resisted, petitioner believes F.T.E. is liable for more than $80,000 in costs. This belief is asserted even though F.T.E., represented by a court-appointed attorney, was successful in regaining control of his life.

In Matter of Heard, 588 So.2d 799 (La.App. 2d Cir.1991), this court ruled that costs of an interdiction proceeding, including attorney fees, are assessed against the estate of the interdict if a judgment of interdiction is rendered; however, if the proposed interdict prevails, it is within the court’s discretion to tax any part of the litigation expenses against any party. In this case the proposed interdict predominantly prevailed, (emphasis added). In Matter of Heard, this court addressed this type of circumstance, stating:

Where as here, the judgment resulted in a limited interdiction, the court clearly had discretion to assess costs in a manner it considered most equitable.

Matter of Heard, 588 So.2d at 802.

This appeal presents the issue of whether the trial court abused its discretion in assessing costs, including attorney fees, against the estate of F.T.E. and, if not, whether the amount fixed as attorney fees is unreasonable. We hold that to the limited extent that petitioner succeeded, a reasonable legal fee is due.

The only real question in this case was factual. As pointed out by petitioner’s attorneys in their motion to consolidate, the factual issues were identical in both the commitment and the interdiction proceedings. The commitment hearings concluded before the interdiction trial started. Thus, from the inception of this matter until September 1990, the time spent by petitioner’s attorneys should be attributed to the commitment for which they concede that they are not entitled to recover fees from F.T.E.’s estate. Post-trial motions and briefs also relate to the commitment question.

The record abounds with instances of unnecessary legal costs sought by petitioner’s attorneys. When this affair started in April of 1990,10 hours were spent by counsel for petitioner on the telephone before any pleadings were drafted. Telephone conferences and a preliminary draft of the petition for interdiction consumed another 16½ hours. After another 7 hours of conversations, the interdiction petition was finally filed. Comments from F.T.E.’s appointed attorney and nurse [another 6½ hours] led to a joint motion to vacate the order of interdiction because it erroneously confined F.T.E. when such confinement is unauthorized in an interdiction proceeding. Thereafter, petitioner filed for F.T.E.’s judicial commitment. The petition for interdiction was amended because it erroneously alleged that F.T.E. suffered from cerebral palsy when in fact he has multiple sclerosis [another 6½ hours]. In light of all of the time spent preparing the pleadings, it is interesting that F.T.E.’s physical condition was not properly alleged.

Petitioner’s law firm’s accountant spent an estimated 3172 hours in preparing an inventory of F.T.E.’s assets. Counsel spent an estimated 8¾ hours on this same inventory. However, this inventory consisted of copying the portfolio of stocks and bonds which were obtained from F.T.E.’s brokers. We note that time was also spent reviewing the contents of F.T.E.’s mother’s safety deposit box.

Two attorneys and an accountant were present for all hearings (including 5 days on the commitment). Eighty (80) hours were claimed for in-court time. Most of the evidence at the interdiction hearing was identical to the evidence in the previous judicial commitment hearings. Counsel’s post-trial brief allegedly consumed another 95 hours and 40 hours were spent replying to respondent’s post-trial brief. Forty-seven and one-half (47 ½) hours were spent opposing F.T.E.’s motion for a new trial and preparing a supporting memorandum. This new trial motion addressed both the commitment and interdiction proceedings; however, it is doubtful that the hours allegedly spent would have been shorter if only the commitment issue was involved. A total of 277 hours were claimed for research and pleadings.

The record is replete with further examples of the lack of concern shown by petitioner and his attorneys for the potential financial impact on F.T.E. and his estate. We further note that F.T.E.’s estate has already borne the financial burden of his 25 month confinement and the involuntary sale of many of his investments. Other than advancement of court costs, the expenses awarded petitioner from F.T.E.’s estate were related to postage, telephone, federal express, etc., incurred by petitioner and his attorneys. The majority of these expenses was connected to the several commitment hearings. Certainly F.T.E. has been burdened enough.

CONCLUSION

In summary, we decline to consider petitioner’s attorneys’ computerized time sheet showing 661.4 hours in our determination of the fee to be awarded in this case. This time sheet is unrealistic and not credible. At least sixty percent of petitioner’s attorneys’ time was spent in connection with the commitment proceedings, for which no fee is to be awarded. Although petitioner may have won a limited interdiction, the primary motive for the proceedings, control of F.T.E.'s financial affairs, was lost. The record does not demonstrate a need for two attorneys and an accountant; therefore, the fee awarded is to compensate one attorney to the extent of his limited success in conjunction with the interdiction proceeding, which transpired over a short period of two days. We further find that it is inequitable and borders on the absurd for petitioner and his attorneys to argue that the outrageous fee they are seeking is to be blamed on the vigorous efforts of F.T.E. and his court-appointed counsel.

Having found an abuse of discretion by the trial court in the amount assessed as costs, including attorney fees, against the estate of F.T.E., we reverse and render judgment setting the total attorney fees and expenses owed by F.T.E.’s estate to petitioner at $12,500. All costs here and below are taxed to petitioner.

NORRIS, J., concurs with written reasons.

LINDSAY and HIGHTOWER, JJ., dissent with written reasons.

NORRIS, Judge,

concurs.

I concur in the result. The trial court abused its discretion in ordering FTE to pay 75% of almost $81,000 in attorney fees and costs. Our original opinion did not order sufficient reduction of this amount under the circumstances here present.

In reality, petitioner in this proceeding ultimately prevailed in only a small portion of his demands. He lost in his attempt to judicially commit FTE, to gain control of FTE’s financial affairs and to have FTE confined to a nursing home. Although a limited curatorship was granted over FTE’s person to assist in his medical care it was narrowly crafted.

I, too, am unwilling to penalize FTE’s efforts in vigorously defending these proceedings by further burdening him with an unreasonable percentage of appellee’s huge attorney fees.

LINDSAY, Judge,

dissenting.

I agree that a reasonable attorney fee is due in this case. I do not agree that $12,-500 is a reasonable fee. For the reasons assigned in the original opinion, I would award attorney fees in the amount of $36,-000, together with expenses of $2,219.29.

In addition to the reasons outlined in the original opinion supporting attorney fees of $36,000, I note that F.T.E.’s attorney had previously conceded that such an award would be proper. In his argument made to the trial court, F.T.E.’s attorney stated:

Giving the petitioner the greatest benefit of the doubt, the Court could, I think, still within the bounds of equity, allocate one-fifth to judicial commitment and two-fifths both to financial curatorship and personal curatorship, which would leave the petitioner’s attorney fees recoverable in a two-fifths rate which will be approximately $35,000 or $36,000. [Emphasis supplied.]

The majority’s decision on rehearing to reduce dramatically the amount of the attorney fee award seems to be based on the assumption that the petitioner and his attorneys did not act in good faith. The rehearing opinion states that the trial court “did not question the good faith of petitioner and his attorneys.” As stated in the original opinion, the trial court specifically found that the petitioner and his counsel acted in good faith. The trial court was in a better position than this court to make such an assessment.

Under these circumstances, I find that the attorney fee award made on rehearing is excessively low.

HIGHTOWER, Judge,

dissenting.

I join in the views expressed in Judge Lindsay’s dissent.

The majority, while disregarding the trial court’s express finding of petitioner’s good faith, awards an unreasonable and inequitable fee. From its inception in 1990, this has been an extremely difficult case.

If faced with bearing legal expenses such as may result from the present decision, it is highly unlikely that a friend or relative will come forward to act in the best interest of any incompetent. 
      
      . Although believing the award of any legal fee to be an abuse of discretion, the writer joins to constitute a majority that believes a legal fee is justified to a limited extent, (emphasis added).
     