Opinion
No. 5-851 / 04-1921
Filed February 1, 2006
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison Judge.
Defendants appeal the district court's award of the plaintiffs' attorney fees. AFFIRMED AND REMANDED.
Kathryn S. Barnhill and Deborah L. Lepes of Barnhill Associates, P.C., West Des Moines, for appellant Hart Meyer, Inc.
Benjamin B. Ullem and Drew J. Gensch of Whitfield Eddy, Des Monies, for appellant North American Specialty Insurance Co.
Dick L. Jensen of Dreher, Simpson Jensen, P.C., Des Moines, for appellees.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
The sole question presented in this appeal is whether the district court erred in awarding plaintiffs Ace Concrete Co. and A-1 Ready Mix, Inc. attorney fees on their successful chapter 573 claim. Defendants Hart Meyer, Inc. and North American Specialty Insurance Co. contend the award was an abuse of discretion. We affirm and remand to the district court for hearing on an award of appellate attorney's fees for the plaintiffs.
I. Background Facts and Proceedings.
The Des Moines Metro Waste Authority contracted with Hart Meyer, Inc. as principal contractor for the construction of the Metro Transfer Station Improvements. North American Specialty Insurance Co. provided surety. Hart Meyer, Inc. subcontracted with Parsons Concrete to perform concrete work on the project. Parsons Concrete purchased ready-mix concrete from Ace Concrete Co. and A-1 Ready Mix, Inc., but did not pay.
On January 10, 2003, plaintiffs Ace Concrete Co. and A-1 Ready Mix, Inc. filed separate liens against Hart Meyer, Inc., pursuant to Iowa Code chapter 573 (2003). On May 30, 2003, the plaintiffs filed separate actions seeking damages for materials provided on a public improvement project against the defendants and Parsons Concrete. The claims were consolidated on August 25, 2003.
On September 5, 2003, Parsons Concrete confessed judgment for the full amount owed. On September 26, 2003, plaintiffs filed a motion for summary judgment. The district court found that under Iowa Code section 573.6, Hart Meyers, Inc. and North American Specialty Insurance Co. were liable for the cost of the materials provided to Parsons Concrete and granted summary judgment to the plaintiffs. Judgment was entered in favor of Ace Concrete in the amount of $54,351.00 and in favor of A-1 Ready Mix, Inc. in the amount of $22,712.30.
The plaintiffs moved for attorney fees as costs and the defendants resisted. The court awarded the full fee request of the plaintiffs in the amount of $25,429.75 to Ace Concrete Co. and $24,620.85 to A-1 Ready Mix, Inc.
II. Scope and Standard of Review.
We review the district court's award of attorney fees for an abuse of discretion. Great America Leasing Corp. v. Cool Comfort Air Conditioning Refrigeration, 691 N.W.2d 730, 732 (Iowa 2005). Reversal is warranted only when the court rests its discretionary ruling on grounds that are clearly unreasonable or untenable. Id.
III. Analysis.
Iowa Code section 573.21 allows an award of attorney fees for "any claimant for labor or materials who has, in whole or in part, established a claim." The plaintiffs proved their claim in whole, and therefore an award of attorney fees is permitted. The defendants claim, however, that the district court's award of attorney fees was unreasonable. North American Specialty Insurance Co. claims the attorney fees claimed by the plaintiffs were excessive and duplicative. Hart Meyer, Inc. claims the attorney fees are grossly disproportionate to the amount of the underlying claim, and that plaintiffs pursued unnecessary and extensive litigation in an effort to bill more attorney fees. Hart Meyer, Inc. also argues the court abused its discretion in failing to award attorney fees against Parsons Concrete after its confession of judgment.
An applicant for attorney fees has the burden to prove that the services were reasonably necessary and that the charges were reasonable in amount. Great America Leasing Corp., 691 N.W.2d at 733. In determining a reasonable amount of attorney fees, the district court should consider a number of factors, including
the time necessarily spent, the nature and extent of the service, the amount involved, the difficulty of handling and importance of the issues, the responsibility assumed and results obtained, the standing and experience of the attorney in the profession, and the customary charges for similar service.
Id. The district court is considered an expert in what constitutes a reasonable attorney fee, and we afford it wide discretion in making its decision. Id.
In its ruling, the district court found no evidence of double billing. The plaintiffs' counsel explained that when working on issues common to both plaintiffs, he divided the time equally between both plaintiffs and billed them each for half. The court's finding on this issue was not unreasonable or untenable.
With respect to the issue of excessive fees, the court found the fees were not excessive for the work done and noted:
The hours charged were not excessive for the work done. The appropriateness of the total amount of time spent cannot be measured by the amount of the recovery, but must be viewed in terms of the complexity of the cases and issues involved. Unfortunately cases are often complex and difficult, even though the amount of recovery sought is not large.
In response to the defendants' claim the plaintiffs' attorney fees were excessive, plaintiffs' counsel defended the time devoted to proving the claims, noting the defendants advanced "frivolous, unfounded defenses, claims and assertions requiring [counsel] to devote extensive time to correct or refute." Plaintiffs' counsel then provided six examples of defendants' claims that were unfounded and needed to be defended against. It was not unreasonable for the court to conclude the plaintiffs proved that the services were necessary and that the amount charged was reasonable. Accordingly, the district court did not abuse its discretion in awarding the plaintiffs their attorney fees.
With regard to Hart Meyer, Inc.'s claim the court abused its discretion in failing to award attorney fees against Parsons Concrete after its confession of judgment; we conclude error has not been preserved. An issue not presented to and passed on by the district court cannot be advanced for the first time on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
We affirm, costs are taxed to the appellants, and the matter is remanded to the district court for hearing on an award of appellate attorney's fees for the appellee.