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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10791
_______________
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,
The district court held in favor of Brinker and
Circuit Judges.
awarded it $8,000 in attorney's fees as a pre-
vailing party pursuant to FED. R. CIV. P. 54(d)-
JERRY E. SMITH, Circuit Judge:
(2)(A) and 42 U.S.C. § 12205.1 NBI appeals
No Barriers, Inc., a nonprofit organization
of persons who use wheelchairs, and Leslie
1 The statute states in full:
Greer, a disabled person who uses a
wheelchair for mobility (collectively "NBI"),
In any action or administrative
sued Brinker Chili's Texas, Inc. ("Brinker"),
proceeding commenced pursuant to this
under the Americans with Disabilities Act
chapter, the court or agency, in its
discretion, may allow the prevailing party,
("ADA") for failing to remove architectural
other than the United States, a reasonable
barriers, as allegedly required by 42 U.S.C.
attorney's fee, including litigation expenses,
§ 12182(b)(2)(A)(iv), in several restaurants.
(continued...)

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

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

precedent neither supported nor absolutely
that NBI unreasonably continued to litigate.8
foreclosed these interpretations. Thus, had
III.
NBI sued Brinker in the correct capacity and
NBI contests the calculation of fees. We
presented factual support for its theory, the
review a determination of reasonable hours
court might not have deemed frivolous its
and rates for clear error and the application of
decision to proceed to trial.7 NBI, however,
the relevant factors for abuse of discretion.
made no evidentiary showing that Brinker
La. Power & Light Co. v. Kellstrom, 50 F.3d
owned, leased, or operated a Chili's in its
319, 329 (5th Cir. 1995).
individual corporate capacity nor that it
exercised any control over the architectural
NBI contends that the court erred in failing
design of the property.
to calculate a "lodestar" amount determined by
the reasonable number of hours expended
Significantly, the court shifted the
multiplied by the reasonable hourly rates for
attorney's fees only for the trial portion of the
the attorneys involved. See Hensley v. Ecker-
litigation. Thus, the court penalized NBI only
hart, 461 U.S. 424 (1983). The "lodestar"
for continuing the trial after it had failed re-
may be adjusted according to (1) the time and
peatedly to sue the proper party; before trial,
labor required for the litigation; (2) the novelty
NBI could have corrected the defect by
and difficulty of the questions presented; (3)
amending its complaint. Because, however,
the skill required to perform the legal services
NBI utterly failed to sue the proper party and
properly; (4) the preclusion of other em-
did not present any evidence supporting its
ployment by the attorney by acceptance of the
theory at trial even had it pleaded properly, the
case; (5) the customary fee; (6) whether the
court did not abuse its discretion in finding
fee is fixed or contingent; (7) time limitations
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
7 The court noted:
plaintiff's failure to produce evidence in support of

his claims). NBI correctly observes that the court
[T]he law in Texas would have allowed you to
could have chosen not to award fees. See, e.g.,
have served Brinker Texas, LP by serving the
Adkins v. Briggs & Stratton Corp., 159 F.3d 306,
general partner had you clarified that was what
307-08 (7th Cir. 1998) ("Nothing in 12205
you were doing, but you did not clarify that. . . .
suggests that the court must award fees to a party
I know of no authority that would hold the
defending against a frivolous claim . . . .");
general partner liable for the acts of the limited
Summers v. A. Teichert & Son, Inc., 127 F.3d
partnership, as opposed to you're [sic] having
1150 (9th Cir. 1997) (refusing to award fees to de-
been able to serve the limited partnership by
fendant where ADA plaintiff had failed to ask for
serving the general partner, which you could
accommodation for his disability). This does not
have done had you clarified that's what you
mean, however, that the court abused its discretion
were doing.
in choosing the opposite course.
4

imposed by the client or circumstances; (8) the
here, the party challenging the attorney's fees
amount involved and the result obtained; (9)
did not explain why they were unreasonable.
the experience, reputation and ability of the
Id. at 823. The court upheld the award,
attorneys; (10) the "undesirability" of the case;
stating:
(11) the nature and length of the professional
relationship with the client; and (12) awards in
Under these circumstances, given the
similar cases. Shipes v. Trinity Indus., 987
district court's familiarity with the legal
F.2d 311, 319-20 (5th Cir. 1993) (citing
work done on this relatively
Johnson v. Ga. Hwy. Express, Inc., 488 F.2d
straightforward [legal issue] as well as
714 (5th Cir. 1974)). Moreover, NBI asserts
our deferential standard of review, we
that because Brinker's application for fees did
are constrained to hold that the district
not state how long the participating attorneys
court had sufficient information before it
had been practicing law, the court could not
to determine reasonable hours.
(and did not) calculate a reasonable hourly
rate.
Id. Similarly, the district court acted within its
discretion in granting a small portion of the
Brinker presented details of the work com-
fees requested on the information before it.11
pleted and the rates charged by each attorney,
a total of 818.8 hours and $112,796.
AFFIRMED.
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
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
10(...continued)
though a prevailing party submitted only a
meaningful review").
summary of total hours expended and hourly rates,
this data was "not so vague and incomplete that the
11 At oral argument, Brinker stated that it will
district court was precluded from conducting a
not seek additional attorney's fees if successful on
(continued...)
this appeal.
5