IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

In	Re: )

)

PATRICIA	NELSON	HORNE,	 )

as	Personal	Representative	of	the	 )

Estate	of	Richard	Horne	and	 )

PATRICIA	NELSON	HORNE, individually, )

)

Debtors, )

)

MARY	BETH	MANTIPLY, )

) CIVIL	ACTION	NO.	13-00258-CB-B

Plaintiff/Appellant, )

)

v. )

)

PATRICIA	NELSON	HORNE,	 )

as	Personal	Representative	of	the	 )

Estate	of	RICHARD	D.	HORNE	and )

PATRICIA	NELSON	HORNE, individually, )

)

Defendants/Appellees. )

ORDER

By	order	dated	September	22,	2016 (Doc.	116),	the	United	States	Court	of	

Appeals	for	the	Eleventh	Circuit	has	transferred	to	this	Court	the	various	attorney’s	

fee	motions	filed	by	the	appellees,	Patrician	Nelson,	as	Personal	Representative	of	

the	Estate	of	Richard	D.	Horne	and	Patricia	Nelson,	individually	(“the	Hornes”)	and	

the	responses	filed	by	the	appellant,	Mary	Beth	Mantiply.		For	reasons	set	forth	

below,	this	Court	grants	the	motions.1

																																																							 1 The	motions	referred	are:		“Amended	Motion	for	Appellate	Attorney’s	Fees	

for	This	Appeal	and	Cross-Appeal”	filed	May	6,	2015;	Renewed	Motion	for	Appellate	

Attorneys’	Fees	for	This	Appeal	and	Cross-Appeal,”	filed	February	8,	2016;	and	

“Second	Amended	Motions	for	Appellate	Attorneys’	Fees”	filed	June	30,	2016.

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The	bankruptcy	court	imposed	sanctions	on	Mantiply,	an	attorney,	for	

violating	the	bankruptcy	stay	and	the	discharge	injunction.2		Mantiply	appealed,	and	

this	Court	affirmed	the	bankruptcy	court’s	award	of	attorney’s	fees	and	also	granted	

an	award	of	attorney’s	fees	incurred	on	appeal.		Mantiply	then	filed	a	postjudgment	

motion	to	vacate	the	sanctions	award	in	bankruptcy	court,	arguing	that	the	

bankruptcy	judge	should	have	recused	himself.		That	order	was	denied.		An	appeal	

followed,	and	this	Court	affirmed	the	bankruptcy	court	but	denied	the	Hornes’	

motion	for	attorney’s	fees	incurred	in	relation	to	the	postjudgment	recusal	motion.

Mantiply	filed	an appeal	in	the	Eleventh	Circuit.		That	appeal	included	several	

orders	related	to	the sanctions	award	(the	sanctions	appeal)	as	well	as	the	

postjudgment	recusal	motion (the	recusal	appeal).		The	Hornes	filed	a	cross	appeal

of this	Court’s order	denying	appellate	attorney’s	fees	related	to	the	recusal	motion.		

The	appellate	court	found	the	sanctions	appeal	to	be	untimely	and dismissed	that	

portion	of	the	appeal.		Subsequently,	the appellate	court	entered	an	opinion	and	

order	in	favor	of	the	Hornes	in	both	the	appeal	and	the	cross	appeal.		With	regard	to	

the	attorneys’	fee	order,	the	appellate	court	held	that this	Court	erred	in	concluding	

that	the	recusal	appeal	involved	only the	discharge	injunction	(for	which	attorney’s	

fees	are	discretionary).		The	appellate	court	pointed	out	that	there	was	no	evidence	

in	the	record	to	limit	the	recusal	appeal	to	the	discharge	injunction	violation.	That	

meant	that	the	recusal	appeal	necessarily	involved	Mantiply’s	violation	of	

																																																							 2 The	long	and	contentious	history	of	this	case	has	been	amply	set	forth	in	

previous	orders	and	need	not	be	rehashed	in	detail	here.			However,	some	context	is	

necessary,	convoluted	though	it	may	be.		

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bankruptcy’s	automatic	stay	for	which	attorney’s	fees	are	mandatory.3 Upon	

remand,	this	Court	so	found	and	awarded	attorney’s	fees	in	the	amount	sought	by	

the	Hornes.

Meanwhile,	Mantiply	filed	a	petition	for	writ	of	certiorari	in	the	United	States	

Supreme	Court	with	respect	to	the	recusal	appeal.		The	Hornes	filed	a	brief	in	

response	to	the	petition.		The	Supreme	Court	denied	certiorari	on	June	28,	2016.		

(Doc.	109.)		

The	Hornes	filed	a	timely	motion	for	appellate	attorney’s	fees	in	the	Eleventh	

Circuit seeking	fees	and	costs	incurred	on	appeal,	but	the	Court	denied	the	motion	

without	prejudice	pending	this	Court’s	decision	on	remand.		After	this	Court	entered	

its	order	on	remand,	the	Hornes	filed	a	renewed	motion	for	attorney’s	fees	in	the	

appellate	court.		 After	that	motion was	filed,	the	United	States	Supreme	Court	

denied	certiorari,	so the	Hornes	filed	a	second	amended	motion	for	attorney’s fees	

to	incorporate	fees	and	costs	incurred	in	responding	to	the	petition	for	certiorari.		

Mantiply	has	filed	briefs	in	response	to	both	the	renewed	amended	motion	and	the	

second	amended	motion,	and	the	Hornes	have	filed	reply	briefs.

Mantiply	objects	both	to	the	award	of	any attorneys	fees	and	to	the	amount	

sought	by	the	Hornes.4		As	to	the	former	objection,	this	Court	is	not	writing	on	a	

clean	slate	or,	to	use	another	adage,	that	ship	has	sailed.		This	Court	has	determined	

																																																							 3 Section	362(k)	“provides	that	‘an	individual	injured	by	any	willful	violation	

of	a	stay	.	.	.	shall recover	actual	damages,	including	costs	and	attorneys’	fees’”	

(emphasis	added),	which	presumably	means	that	an	award	of	attorney’s	fees	is	

mandatory	for	a	stay	violation,	albeit	only	discretionary	for	a	discharge	violation.”		

(Doc.	95	at	9	(quoting	11	U.S.C.	§	362(k)).		

4 Both	parties	assert	various	technical	objections	to	the	content	and	timing	of	

the	motions	and	responses.		The	Court	chooses	to	avoid	becoming	mired	in	that	

minutiae	and	will	jump	directly	into	the	substantive	issues.

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in	prior	orders	(Docs.	36	&	97)	that	the	Hornes	are entitled	to	mandatory	attorney’s	

fees	under	11	U.S.C.	§	362(k).		Under	the	law-of-the-case	doctrine,	that	issue	cannot	

be	revisited.		See	Oladeinde	v.	City	of	Birmingham, 230	F.3d	1278,	1288	(11th Cir.	

2000)	(law-of–the-case	doctrine	bars	consideration	of	legal	issues	that	were	

actually,	or	necessarily	by	implication,	decided	in	a	prior	proceeding).5

Consequently,	the	only	issue	to	be	decided	is	the	amount	of	the	attorney’s	

fees	to	be	awarded.		Fee	awards	under	§	362(k)	are	governed	by	a	reasonableness	

standard.		In	re	Parker,	No.	1:07CV737-MHT,	2008	WL	4183436,	*2	(M.D.	Ala.	2008).		

To	determine	reasonableness,	courts	apply	the	lodestar	approach.	Id. “In	

determining	the	allowable	hours	and	rates	that	make	up	the	lodestar,	‘a	judge	must	

1)	determine	the	nature	and	extent	of	the	services	rendered;	2)	determine	the	value	

of	those	services;	and	3)	consider	the	factors	laid	out	in	Johnson	v.	Georgia	Highway	

Express,	Inc.,	488	F.2d	714	(5th	Cir. 1974)	and	explain	how	they	affect	the	award.”	Id.

(quoting	Grant v.	George	Schumann	Tire	&	Battery	Co.,	908	F.2d	at	874,	877-78	(11th

Cir.	1990)(footnotes	omitted)).6

																																																							 5 To	the	extent	Mantiply’s	reliance	on	Baker	Botts	L.L.P.	v.	ASARCO,	LLC,	135	S.	

C5.	2158	(2015),	may	be	viewed	as	an	attempt	to	argue	an	intervening	change	in	the	

law,	it	is	unpersuasive	for	two	reasons.		First,	the	case	was	decided	before the	most	

recent	order	granting	attorney’s	fees	under	§	362(k).		Second,	ASARCO is	not	

controlling.		That	case	addressed	attorney’s	fees	incurred	in	fee-defense	litigation	

based	on	a	bankruptcy	statute,	18	U.S.C.	§	330,	that	authorized	a	discretionary award	

of	attorney’s	fees.		In	this	case,	the	Hornes’	attorneys	were	defending	a	sanctions	

award	under	a	statute	that	makes	attorney’s	fees	mandatory. 6 The Johnson	factors	are:	(1)	the	time	and	labor	required,	(2)	the	novelty	and	

difficulty	of	the	legal	questions,	(3)	the	skill	required	to	perform	the	legal	service	

properly,	(4)	the	preclusion	of	other	employment	by	the	attorney	due	to	acceptance	

of	the	case,	(5)	the	customary	fee	for	similar	work	in	the	community,	(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	attorney,	(10)	the	undesirability	of	the	case,	(11)	the	

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In	total,	there	are	three	motions	for	attorney’s	fees	pending,	all	of	which	are	

supported	by	affidavits	as	well	as	a	breakdown	of	hours	expended.		First	is	the	

motion	for	attorney’s	fees	filed	in	the	Eleventh	Circuit requesting	an	award	of fees

and	costs incurred	during	the	appeal	and	cross	appeal.		The	supporting	documents	

reflect 231.1	hours	at	a	rate	of	$250	per	hour,	plus	unreimbursed	expenses	of	

$1,175.08,	for	a	total	request	of	$61,700.		Second	is	a	renewed	motion	for	appellate	

attorney’s	fees	which	seeks fees	and	costs	incurred	upon	remand	of	the	attorney’s	

fee	issue	after	their	successful cross	appeal--15.7	hours	at	a	rate	of	$250	per	hour,	

plus	$21.25 in	unreimbursed	expenses,	for	a	total	of	$1,196.33.		Third	is	the	second	

amended	motion—111.4	hours	at	a	rate	of	$250	per	hour,	plus	$1249.53	in	

unreimbursed	expenses,	for	a	total	of		$30,795.86.		Altogether,	the	Hornes’	

attorney’s	fees	and	expenses	for	the	appeal,	remand,	and	petition	for	certiorari	total	

$92,495.86.

Though	the	amount	may	be	large,	it	is	not	unreasonable	when	the	Johnson

factors	are	considered.		Time	and	labor	alone	are	major	considerations.		The	

sanctions	order that	begat	this	seemingly	endless	litigation	involved	repeated	

violations	of	the	bankruptcy	stay	and	the	discharge	injunction	over	a	period	of	many	

months.		At	every	turn, Mantiply	and	her	counsel	have	made	simple	issues—both	

legal	and	factual--unnecessarily	complicated,	thus	necessitating	an	extraordinary	

amount	of	work	on	the	part	of	opposing	counsel and	creating	a	monstrosity	of	a	

																																																																																																																																																																				

nature	and	length	of	the	professional	relationship	with	the	client,	and	(12)	awards	

in	similar	cases.		Johnson,	488	F.2d	at	717-19.		

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record in	a	legal	battle	that	has	been	going	for	more	than	five	years.7 Composing	an	

appellate	brief	(or	an	opposition	to	certiorari)	based	on	this	record	must	be	a	

Herculean	task.		And	this	appeal	required	not	one,	but	two,	rounds	of	briefing	in	the	

Eleventh	Circuit.		Because	Mantiply	included five	district	court	orders	(entered	

months	apart) in	her	appeal,	the	Eleventh	Circuit	questioned	the	timeliness of	some	

aspects	of	the	appeal	and	sua	sponte	ordered	the	parties	to	submit	briefs	on	the	

jurisdictional	issue.		Following	those	briefs,	the	court	dismissed	Mantiply’s	appeal	as	

to	all	but	one	order.			The	parties	were	then required	to	submit	briefs	on	the	

remaining	substantive	issues.

The	skill	required,	the	experience	of	counsel,	the	result	obtained,	the	time	

limits	involved,	and	the	undesirability	of	this	case	are	also	important	factors.		

Because	this	matter	involves	bankruptcy	law,	the	pool	of	qualified	attorneys	is	

limited.		The	Hornes’	attorneys	have	special	expertise	in	bankruptcy,	years	of	

experience,	and	excellent	reputations.		And	they	have	prevailed	at	each	and	every	

level	of	this	case—bankruptcy	court,	district	court,	appellate	court,	and	the	Supreme	

Court.8		Because	these	attorney’s	fee	petitions	involve	appellate	work,	the	strict	time	

limitations	applicable	in	the	appeals	court	also	factor	in	the	Hornes’	favor.		A	final	

factor	favoring	the Hornes,	as	their	counsel	points	out,	is	the	undesirability	of	

undertaking	legal	action	against	a	fellow	member	of	the	bar.9

																																																							 7 Simply	sorting	through	the	proceedings	in	order	to	provide	context	for	this	

order	has	consumed	an	inordinate	amount	of	the	Court’s	time.		

8 Mantiply	argues	that	the	fee	award	is	disproportionate	to	the	result.		That	

argument	ignores	the	fact	that	the	Hornes	necessarily incurred	those	fees	because	

Mantiply chose	to	appeal	the	sanctions	award.		

9 In	granting	prior	attorney’s	fee	motions	in	this	case,	this	Court	has	

approved	the	hourly	rate	and	need	not	revisit	it	here.		The	remaining	Johnson factors	

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Mantiply	raises	several	objections	regarding	specific	items	in	the	fee	

petitions.	 The	Court	will	address	only	two of	those objections in	detail.		The	first	

relates	to	travel	time	for	counsel’s	visit	to	Mrs.	Horne	to	discuss	settlement.		

Mantiply	argues	that	counsel	could	have	communicated	with	Mrs.	Horne	by	

telephone	or	other	means.		In	her	reply,	the	Hornes’	counsel	points	out	that	Mrs.

Horne	was	visiting	relatives at	a	rented	beach	house	with	no	landline	and	no	cell	

phone	reception.		The	need	to	communicate	the	settlement	offer	was	urgent	because	

Mantiply	was	under	a	deadline	to	file	an	appellate	brief.		Because	the	Hornes’	

counsel	was	attempting	accommodate	Mantiply’s	deadline,	the	Court	finds	that	this	

expense	is	reasonable.		Next,	Mantiply objects	to	the	amount	of	time	the	Hornes’	

attorneys	spent	preparing	and	filing	a response	to	the	petition	for	certiorari.		She	

argues	that	the	Hornes’	response	was excessive	because	it	argued	the	merits,	which	

was	unnecessary	in	response	to	a	petition	for	certiorari.	Based	on	the	Court’s	

knowledge	of	and	experience	with	the	case,	it	is	persuaded	by	the	Hornes’	response	

that	the	scope	of	their	brief	was	necessary	to	address	jurisdictional	issues	and	

misstatements	of	law	and	fact.		Mantiply’s	remaining	objections	are	quibbles	about	

how	much	time	tasks	should	have	taken.		In	a	normal	case,	some	of	the	tasks	pointed	

out	might	have	been	accomplished	in	a	lesser	amount	of	time.		This	is	not	a normal	

case.		It	has	consumed	an	inordinate	amount	of	the	Court’s	time,	with	every	motion	

and	pleading	requiring	twice	as	much	time	to	address	as	anticipated.		Based	on	its	

																																																																																																																																																																				

are	of	minor,	if	any,	impact	in	this	case.		The	Hornes	counsel	state	that	they	were	not	

precluded	from	other	employment,	the	fee	was	fixed,	and	they	had	no	preexisting	

relationship	with	the	client.		

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own	experience,	the	Court	cannot	fault	the	Hornes’	counsel	for	their	expenditures	of	

time.

In	conclusion,	the	Court	GRANTS the	Hornes’	motions	and	awards	the	

Hornes	appellate	attorneys	fees	and	costs	in	the	amount of	$92,495.86.

DONE and	ORDERED this	the	28th day	of	September, 2016.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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