United States Leather, Inc. v. H & W Partnership

United States Court of Appeals,

Fifth Circuit.

No. 94-60368.

UNITED STATES LEATHER, INC., Plaintiff-Appellee, Cross-Appellant,

v.

H & W PARTNERSHIP, a Mississippi general partnership, et al.,
Defendants, Cross-Appellees,

H & W Partnership, a Mississippi general partnership and Walter
E. Helms, Jr., Defendants-Appellants, Cross-Appellees.

Aug. 7, 1995.

Appeals from the United States District Court for the Northern
District of Mississippi.

Before WOOD,* JOLLY and DeMOSS, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge:

In this diversity action, H & W Partnership and Walter Helms,

a general partner, appeal the district court's ruling that the

execution of a promissory note in favor of United States Leather by

another general partner obligated the partnership. In

reconsideration of its earlier grant of judgment as a matter of law

in favor of the partnership and Helms, the district court found

that Dean Wilkerson, the other general partner, was acting within

the scope of the partnership business when he signed a promissory

note as a general partner of H & W Partnership. H & W Partnership

and Helms appeal, and United States Leather cross-appeals the

amount of attorneys' fees allowed by the district court.

I.

*
Circuit Judge of the Seventh Circuit, sitting by
designation.

1
 Beginning in 1989, Dean Wilkerson [Wilkerson] and Walter Helms

[Helms] jointly formed several corporations and one general

partnership. All of the businesses were either directly or

indirectly involved in the manufacturing of upholstered furniture.

Wilkerson and Helms initially formed a holding company, Princeton

Industries, Inc., for the purpose of acquiring all of the stock and

assets of Pierce-Etheridge Group, Ltd., a manufacturing furniture

plant in Booneville, Mississippi. They also formed Artistic of

Mississippi, Inc., the purpose of which was to acquire the assets

of Artistic Furniture Company of St. Louis. Later that year,

Wilkerson and Helms formed DWA of Tennessee, Inc. [DWA]. DWA was

organized to purchase some of the assets of Artistic of

Mississippi, specifically its furniture manufacturing facility

located in Amory, Mississippi. Helms and Wilkerson were the

directors, officers, and investors in each of these corporate

entities.

Shortly after DWA was formed, Helms and Wilkerson created H &

W Partnership [H & W], a general partnership. H & W was formed to

purchase the DWA furniture manufacturing facility in Amory,

Mississippi and then lease it back to DWA.1 No written partnership

agreement was ever created to memorialize the purpose of the

partnership or the respective roles of the two partners.

In October 1990, DWA began purchasing leather from Lackawanna

Leather Company [Lackawanna], a division of United States Leather

1
Helms testified that they used the partnership to acquire
the property from DWA for tax reasons and to keep DWA debt-free
so it could later borrow operating capital.

2
[USL]. By December 1990, DWA had purchased over $350,000.00 of

leather on an unsecured corporate account, balance of which was due

in January 1991. In early 1991, Lackawanna's Chief Financial

Officer Robert Link [Link] became involved in arranging a repayment

plan. DWA and Lackawanna worked out an agreement whereby DWA would

pay Lackawanna $10,000.00 every other week on a timely basis and

Lackawanna would continue to ship DWA leather. Link testified that

the agreement never really took place because DWA neither bought

any more leather from Lackawanna, nor made any payments under the

contract.

In May 1991, Link visited the Amory plant in an effort to

collect on the balance. DWA reaffirmed that they would begin to

pay on the account under the terms of the prior agreement. In June

1991, Lackawanna agreed to ship two orders of leather to DWA on a

C.O.D. basis. DWA's checks for those shipments bounced, and by the

end of June 1991, the balance due on DWA's account was $438,229.65.

On August 8, 1991, Wilkerson and Howard Bloom, another

investor in DWA, met with Link and other representatives at

Lackawanna's offices in Conover, North Carolina, to discuss payment

of the indebtedness and potential future shipments. At the

meeting, Wilkerson and Bloom presented a promissory note in favor

of Lackawanna for the principal amount. The note provided for

payments beginning on August 16, 1991, and that performance on the

note was a condition to any future shipments of leather. During

this meeting, Bloom encouraged Link to contact another DWA

supplier, Quaker Fabric Corporation [Quaker], because DWA had

3
worked out a similar financing arrangement with them. A few days

after the note was signed, Link contacted Quaker and learned that

DWA had a similar promissory note with Quaker. The Quaker note,

however, required the inclusion of all DWA-related entities as

makers to the note, including H & W Partnership.

A few days before the first payment on the note was due,

Wilkerson called Link and requested an extension of time. Link,

now with the knowledge of the Quaker arrangement, conditioned the

extension on making several changes to the note, including the

addition of DWA Realty, Pierce-Etheridge, Princeton Industries, and

H & W Partnership as makers to the note. The changes were made and

Wilkerson signed the note. Approximately at the same time the

revised promissory note was executed, Link and Wilkerson signed a

security agreement with respect to future shipments of goods by

Lackawanna. The security agreement included as "debtors" DWA, DWA

Realty, Pierce-Etheridge, Princeton Industries, and H & W

Partnership. Both Wilkerson and Helms signed the security

agreement. Helms, who had a priority lien on certain assets of

DWA, agreed to subordinate his lien in favor of Lackawanna to

enable the agreement to be finalized. Helms and his wife signed

directly below the H & W Partnership signature line binding H & W

as debtors.

Payment was never made on the note and by the end of October

1991, DWA, Pierce-Etheridge, and Princeton Industries went out of

business. In February 1992, USL filed its complaint seeking to

recover on the promissory note executed by Wilkerson. In January

4
1994, the case proceeded to jury trial and at the conclusion of the

evidence, both parties moved for judgment as a matter of law. The

district court granted USL's motion with respect to Wilkerson and

entered judgment against him in the amount of $438,229.65, plus

interest of $193,156.54 for a total judgment of $631,386.19. The

district court, however, granted H & W's and Helms' motion based on

the finding that Wilkerson's execution of the promissory note on

behalf of the partnership went beyond the scope of the partnership

business and therefore did not bind H & W or Helms. The court

found that the sole purpose of the partnership was to own the real

property of DWA in Amory, Mississippi. Judgment was entered on

January 27, 1994.

From the date of the judgment, USL had ten days to file

post-trial motions. The relevant ten day period would have expired

on February 10, 1994. On February 9 and 10, a severe ice storm

struck northern Mississippi. Due to the extreme weather

conditions, USL was unable to get to the federal courthouse in

Aberdeen, Mississippi, in order to make a timely filing of its

post-trial motions. The day after the storm, USL filed its renewed

motion for a judgment as a matter of law or for a new trial

pursuant to Fed.R.Civ.P. 50(b) and 59(a). USL also filed a motion

to alter or amend the judgment in its favor to include an award of

attorneys' fees and expenses under Rule 59(e). The district court

accepted and considered the motions.

On April 25, 1994, the district court, in reconsideration of

its earlier judgment, granted USL's motion for judgment as a matter

5
of law and awarded attorneys' fees. The court found that the acts

of Wilkerson in signing the August 8 note were within the scope of

the partnership business because there was a direct relationship

between DWA and H & W. The court also awarded attorneys' fees in

the amount of $82,653.50, despite USL's request for a total award

of $192,994.00. H & W and Helms appeal the district court's

judgment and USL cross-appeals the amount of attorneys' fees.

Wilkerson does not join in this appeal.

II.

A party has ten days from the entry of judgment in which to

file any post-trial motions, including a renewed motion for

judgment as a matter of law, a motion for a new trial, and a motion

to amend or alter a judgment. Fed.R.Civ.P. 50(b), 59(b) & (e).

The requirement that post-trial motions be filed within the

relevant ten day period after entry of judgment is jurisdictional,

and may not be extended by a waiver of the parties or by a rule of

the district court. Vincent v. Consolidated Operating Co., 17 F.3d

782, 785 (5th Cir.1994) (citing Flores v. Procunier, 745 F.2d 338,

339 (5th Cir.1984)). The mover's failure to serve the motion

within the ten day limit deprives the district court of

jurisdiction to alter or reconsider its earlier judgment. Flores,

745 F.2d at 339. Therefore, we review the rulings on these motions

de novo, employing the same standards the district court applied.

Wheat v. Pfizer, Inc., 31 F.3d 340, 343 (5th Cir.1994); Omnitech

Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir.1994);

Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir.1993).

6
 Rule 6(a) provides that the last day of the ten day period

cannot occur on a day the courthouse is not accessible because of

weather or other conditions. In pertinent part, Rule 6(a) states:

(a) Computation. In computing any period of time prescribed
or allowed by these rules, ... the day of the act, event, or
default from which the designated period of time begins to run
shall not be included. The last day of the period so computed
shall be included, unless it is a Saturday, a Sunday, or a
legal holiday, or, when the act to be done is the filing of a
paper in court, a day on which weather or other conditions
have made the office of the clerk of the district court
inaccessible, in which event the period runs until the end of
the next day which is not one of the aforementioned days.

Fed.R.Civ.P. 6(a). USL argues that under Rule 6(a) their

post-trial motions were timely because the severe ice storm that

hit northern Mississippi on the last day of the filing rendered the

Aberdeen district court clerk's office inaccessible. H & W and

Helms contend that USL does not fall within the narrow weather

exception of Rule 6(a) because the court was not physically

inaccessible to USL. Therefore, they argue, the April 25, 1994,

judgment of the court was a nullity.

The consequences of Rule 6(a) are determined by a court's

interpretation of "inaccessible." Appellants argue that the

exception should be strictly construed to mean that the clerk's

office must be physically inaccessible or closed for the day before

Rule 6(a) will apply. Appellants point to several bankruptcy cases

where courts have interpreted a similar bankruptcy rule and found

that physical inaccessibility is required.2 The appellants argue

2
Bankruptcy Rule 9006(a) is also considered a "weather
exception." See e.g., In re Hotel Syracuse, Inc., 154 B.R. 13,
18 (Bankr.N.D.N.Y.1993); In re Richards, 148 B.R. 548, 549
(Bankr.N.D.Ill.1993); In re Bicoastal Corp., 136 B.R. 288

7
that the best evidence the district court's office was accessible

was that USL filed a motion to extend time earlier that same day.

We find, however, that such a strict construction of the rule is

not required. See e.g., Telephone & Data Sys. v. Amcell F Atlantic

City, 20 F.3d 501, 502 (D.C.Cir.1994) (per curiam) (rejecting

"appellees' contention that the clerk's office was not

"inaccessible' because it was physically possible to file papers in

the district court's 24-hour drop box"); Frey v. Woodward, 748

F.2d 173, 175 (3rd Cir.1984); Connors v. United States, 711

F.Supp. 479, 480-81 (C.D.Ill.1989); see also In re Swine Flu

Immunization Prod. Liab. Litig., 880 F.2d 1439, 1445 (D.C.Cir.1989)

(interpreting the time limitation in Federal Tort Claims Act § 2401

in relation to Rule 6(a) and finding counting snow days appropriate

in determining last day for filing).

An ice storm that temporarily knocks out an area's power and

telephone service and makes travelling dangerous, difficult or

impossible, thereby rendering the federal courthouse inaccessible

to those in the area near the courthouse, is enough to come within

Rule 6(a)'s weather exception. The facts in this case illustrate

a situation where accessibility is not merely a matter of whether

the clerk's office is open or closed. Thomas Suszek, an attorney

in Oxford, Mississippi, was local counsel representing USL.

According to Suszek's affidavit, he had planned to transfer the

motions via modem to his Aberdeen office on February 10, 1994, in

order to have them filed. The storm hit the northern Mississippi

(Bankr.M.D.Fla.1990).

8
area the night of February 9, 1994, and continued through the next

day. Suszek was physically unable to leave his home during the

storm due to felled trees and power lines. Further, due to the

loss of power to the area, the motions were trapped inside Suszek's

computer at his office. Oxford was part of the area declared a

Federal Disaster Area as a result of the storm. Because of the

weather and road conditions existing on February 10, 1994, the

courthouse in Aberdeen, Mississippi, was not accessible to USL for

purposes of filing the post-trial motions. We find that the Rule

6(a) weather exception cannot be so stringently read to exclude

circumstances such as these where the weather in the surrounding

area of the courthouse foreclosed access to counsel's office or

computer files. Out-of-state counsel was forced to arrange an

emergency, last minute filing at the courthouse which did in fact

close later that day.3 The weather exception was added to Rule

3
Appellants argue that because a motion for an extension of
time was actually filed on February 10, 1994, in spite of the
weather this illustrates that the federal courthouse was not
inaccessible. Suszek, local counsel for USL and located in
Oxford, Mississippi, had contacted Wisconsin counsel, Nancy
Sennett, via cellular phone and apprised her of the weather
problem. Sennett called the district court and one of the
judge's law clerks advised her that she should file for an
extension of time which would be granted despite any
jurisdictional concerns in normal circumstances, rather than "a
piecemeal filing consisting of a barebones motion to be followed
by supplemental motions and briefs later." The law clerk stated
that court was currently in session, but was set to close shortly
because of the weather. Sennett followed the law clerk's
instructions and arranged by telephone for the secretary in the
Aberdeen office of local counsel to prepare and file a motion for
an extension of time before the weather closed the court down.
We find that this last minute filing in an extraordinary
situation done at the request of the district court, combined
with the existing weather conditions of the area, does not
constitute a finding that the district court was accessible.

9
6(a) to acknowledge that such events may render the clerk's office

inaccessible and impose an undue hardship, particularly in the type

of post-trial motions involved in this case.4 We find that the

situation in northern Mississippi falls within Rule 6(a)'s

exception for weather and other conditions.

III.

Next, the appellants ask us to consider whether the district

court was correct in finding that Wilkerson's actions in the

signing of the promissory note in favor of Lackawanna bound Helms

and the partnership. The district court initially determined that

Wilkerson was not acting within the scope of the partnership

business because H & W's business was simply to own the DWA

property in Amory, Mississippi. The district court reconsidered

its earlier judgment and found that Wilkerson was acting within the

scope of the partnership business because there was a direct link

4
In 1985, Rule 6(a) was amended to allow for certain events
that may disrupt the ten day filing period proscribed under the
Rules. In regards to this amendment, the Advisory Committee
stated:

Rule 6(a) is amended to acknowledge that weather
conditions or other events may render the clerk's
office inaccessible one or more days. Parties who are
obliged to file something with the court during that
period should not be penalized if they cannot do so....
The Rule also is amended to extend the exclusion of
intermediate Saturdays, Sundays, and legal holidays to
the computation of time periods less than 11 days.
Under the current version of the Rule, parties bringing
motions under rules with 10-day periods could have as
few as 5 working days to prepare their motions. This
hardship would be especially acute in the case of Rules
50(b) and (c)(2), 52(b), and 59(b), (d), and (e), which
may not be enlarged at the discretion of the court.

Fed.R.Civ.P. 6(a) advisory committee's note.

10
between the business of DWA and the partnership's business. The

district court found that H & W's aid in arranging financing for

DWA was an important part of the partnership's business because the

partnership's own viability was directly tied to the success of

DWA. We review the district court's grant of judgment as a matter

of law in favor of USL de novo, using the same standard employed by

the district court. Sulmeyer v. Coca Cola Co., 515 F.2d 835, 841

(5th Cir.1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47

L.Ed.2d 341 (1976). If in viewing all the facts in favor of Helms

and H & W, reasonable jurors could not have concluded that

Wilkerson was acting beyond the scope of the partnership, judgment

as a matter of law in favor of USL was appropriate. See Boeing Co.

v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969).

The controlling law is § 9 of the Uniform Partnership Act

[UPA] found both at Wis.Stat. § 178.06(1) and Miss.Code Ann. § 79-

12-17(1).5 That section of the UPA provides:

(1) Every partner is an agent of the partnership for the
purpose of its business, and the act of every partner,
including the execution in the partnership name of any
instrument, for apparently carrying on in the usual way the
business of the partnership of which the partner is a member
binds the partnership, unless the partner so acting has in
fact no authority to act for the partnership in the particular
matter, and the person with whom the partner is dealing has
knowledge of the fact that the partner has no such authority.

U.P.A. § 9. Under the statute, the determinative issue is whether

5
The August 8, 1991, promissory note contained a choice of
law provision that stated Wisconsin law governed the note.
Because, however, the UPA is controlling and both states have
adopted the Act, appellants concede on appeal that Wisconsin law
will apply at least to this issue.

11
Wilkerson acted within the scope of the partnership business.6

The district court relied on the Wisconsin Supreme Court case

Grotelueschen v. American Family Mut. Ins., 171 Wis.2d 437, 492

N.W.2d 131 (1992), in finding that Wilkerson acted within the scope

of the partnership business. In Grotelueschen, the court held that

a partner's actions will be within the scope of the partnership

business if the actions benefitted the partnership or furthered its

purposes. Id. at 453, 492 N.W.2d at 137. Appellants contend that

the district court incorrectly relied on that case because it did

not deal with whether or not the actions of one partner could bind

a partnership in the execution of a note.7 The appellants argue

that Reliable Pharmacy v. Hall, 54 Wis.2d 191, 194 N.W.2d 596

(1972), controls this case. In Reliable Pharmacy, the court held

that the execution of an employment contract by a partner that was

consistent with the historical practices of the partnership bound

the partnership under Wis.Stat. § 178.06(1). Id. at 198, 194

6
Appellees also argue alternatively that Wilkerson had the
apparent authority to sign the note or Helms ratified Wilkerson's
actions. Because we find the relevant issue involves whether
Wilkerson acted within the scope of the partnership business, we
need not address the other arguments.
7
In Grotelueschen, a granddaughter sued her grandfather when
he accidently ran over her while mowing the lawn. Id. at 445,
492 N.W.2d at 133. The grandfather and his wife were partners in
D & R Rentals, a partnership that owned and operated an
eight-unit apartment building. Id. at 442, 492 N.W.2d at 132.
The grandfather was mowing the lawn near a red shed when the
accident happened. Id. The red shed was apart from the actual
partnership property, but it was used to store the tools needed
to maintain the apartment grounds. Id. at 445, 492 N.W.2d at
133. The court found that the grandfather's actions were within
the scope of the partnership because he was maintaining the
premises that stored the tools that were used in the business of
the partnership. Id. at 453, 492 N.W.2d at 137.

12
N.W.2d at 600. Appellants argue that the historical practices of

H & W indicate that Wilkerson was not carrying out the partnership

business in the usual way when he assumed the Lackawanna debt for

DWA. However, whether Wilkerson's actions are analyzed under

either case, we find the result is the same.

Although the facts in Grotelueschen are distinguishable, the

court did set out an appropriate test for determining whether the

partner's acts were within the scope of the partnership business:

the acts of a partner will bind the partnership if they are done to

further or benefit the partnership. Id. at 453, 492 N.W.2d at 137.

It is not disputed that there was a direct relationship between DWA

and H & W. H & W's own viability depended on the continuation of

DWA because H & W relied on the rental income from DWA to pay its

mortgagees. Therefore, in order to keep DWA in business, DWA

needed raw materials, including leather from Lackawanna, and it was

the business of the partnership to ensure DWA had access to

financing so it could acquire these materials. The acts of

Wilkerson in executing the promissory note in favor of Lackawanna

indirectly, but with certainty, benefitted the partnership.

Appellants argue that Reliable governs the facts in this case.

In Reliable, the court found a partner's execution of an employment

contract bound the partnership to liability on the contract.

Reliable, 54 Wis.2d at 197-98, 194 N.W.2d at 599-600. The court

held that "[t]he execution of the contract comports with the

historical practices consistently followed by the partnership and

... the authority of [the partner] was actual authority." Id. at

13
199, 194 N.W.2d at 600. It is the appellants' argument that under

Reliable a different test is used whereby the determinative factor

is whether the partner's acts were consistent with the historic

practices of the partnership. Id. Appellants contend that under

this standard there was no evidence to suggest that either H & W

was created for any other purpose than to own the property it

rented to DWA, or that H & W's dealings with DWA were anything more

than the receipt of a rent check each month. Helms and H & W

contend the evidence clearly established that Lackawanna had never

transacted with H & W before the August 8 promissory note.

We first note that the standard in Reliable does not set out

a completely different test in determining partnership liability

based on the actions of partners. The historical practices of the

partnership are a factor to be considered in determining the scope

of the partnership business or whether the partner had actual

authority. In Reliable, the court was attempting to determine

whether the partner had the actual or apparent authority to execute

the employment contract on behalf of the partnership. Id. at 197-

98, 194 N.W.2d at 599. The court found that the partner had actual

authority in the execution of the contract and his actions were

consistent with the historical practices of the partnership. Id.

Moreover, merely shifting the focus of the analysis to the

historical practices of the partnership reveals other evidence that

obtaining financing for DWA was a integral part of the H & W's

business. As mentioned previously, it is undisputed the H & W

relied on DWA's rental income for its own viability, and therefore

14
had an interest in keeping DWA in business. It has also been shown

that Wilkerson executed a similar promissory note with Quaker

Fabric Corporation and had even encouraged Lackawanna to inquire

into that arrangement. In addition to the Quaker note, there were

two other times H & W executed agreements in order to facilitate

financing for DWA. On May 1, 1991, Wilkerson and Helms signed a

Hypothecation Agreement in favor of Trustmark National Bank

pledging H & W's assets so DWA could get additional money on a line

of credit. Also in August 1991, H & W executed a UCC Financing

Statement in favor of Trustmark National Bank for the purpose of

lending money to DWA. Appellants argue that these incidents are

"exceptions" to the way business was usually done because both

partners signed the agreements. Both partners, however, signed the

Lackawanna security agreement shortly after the August 8 promissory

note was executed. What is reasonably apparent from these

transactions is that H & W Partnership had a continued and

necessary interest in obtaining financing for DWA that would

subsequently benefit the partnership. The prior transactions

further substantiate that this practice was an ordinary and

consistent manner in which the partnership carried out its

business. Wilkerson's actions were within the scope of the

partnership business when he executed the note in favor of

Lackawanna.

IV.

Lastly, the appellees cross-appeal the amount of attorneys'

15
fees. USL had requested $192,994.008 in total attorneys' and

paralegal fees. There were nine attorneys and seven paralegals

involved from Wisconsin and Mississippi.9 The district court

reduced the amount of the fees on two grounds: first, the court

determined that some of the hours expended were duplicative,

excessive or otherwise unnecessary; second, the court reduced the

hourly rate and valued the services according to the customary fee

charged in the court's district for similar services and quality of

work. Following the Lodestar formulation, the district court

calculated and awarded $82,653.50.

In determining the reasonableness of an attorneys' fee award,

an appellate court is limited to considering whether the district

court abused its discretion. Copper Liquor, Inc. v. Adolph Coors

Co., 684 F.2d 1087, 1094 (5th Cir.1982); Davis v. City of

Abbeville, 633 F.2d 1161, 1163 (5th Cir.1981); Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714, 720 (5th Cir.1974). This

determination rests on a careful review of the district court's

basis for the award, including its consideration of the criteria

set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir.1974). King v. McCord, 621 F.2d 205, 206 (5th Cir.1980).

If these factors are not evaluated and explained, the case will be

8
USL points out that there was a mathematical error in the
number of hours expended by an attorney. USL recalculated the
amount after reducing the hours, and now requests a total award
of $162,910.00.
9
USL was represented by Foley & Lardner of Milwaukee,
Wisconsin. Foley & Lardner associated the Mississippi law firm
of Holcomb, Dunbar, Connell, Chaffin & Willard to assist them as
local counsel.

16
remanded, if necessary, for an explanation to facilitate appellate

review. Davis, 633 F.2d at 1163. USL argues that the district

court abused its discretion because the fees were not contested by

Helms or H & W and therefore should have never been reduced.

Alternatively, they argue that the district court abused its

discretion in reducing the hours and rates requested.10

It is within a district court's sound discretion to reduce

the amount of an attorneys' fee award, including an award that is

uncontested by an opposing party. The court is limited in its

discretion only by the considerations espoused in Johnson. Here

the district court attentively evaluated the Johnson factors as

applied to each attorney and paralegal involved in this case. The

district court carefully reviewed the time sheets, thoroughly

considered the applicable factors, and set forth its explanation in

a well-reasoned memorandum. We cannot say the district court

abused its discretion in awarding attorneys' fees of $82,653.50.

FOR THE FOREGOING REASONS, the district court is AFFIRMED.

10
It could be argued that the Johnson considerations do not
apply at all because Johnson only provides guidance for awarding
attorneys' fees in actions based on federal law. This creates a
potential conflict of law issue in determining whether
Mississippi or Wisconsin law is applicable. Regardless of the
applicable law, the review of the award of attorneys' fees is
deferential. Moreover, both states have accepted in notable
fashion the Johnson factors in determining reasonable attorneys'
fees. See e.g., Standard Theatres, Inc. v. Department of
Transp., 118 Wis.2d 730, 749 & n. 9, 349 N.W.2d 661, 672 & n. 9
(1984); Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995);
Carter v. Clegg, 557 So.2d 1187, 1192 (Miss.1990). Therefore, we
find the district court's analysis under Johnson and its progeny
is appropriate.

17