Opinion
No. 105,673.
2012-08-10
Todd DREW and Vicki Drew, Appellees, v. COBBLESTONE BUILDERS, INC., Judgment Debtor, v. Mid–Continent Casualty Company, Appellant.
Appeal from Sedgwick District Court; Joseph Bribesca and Timothy G. Lahey, Judges. Vincent F. O'Flaherty, of Law Offices of Vincent F. O'Flaherty, Attorney, LLC, of Kansas City, Missouri, for appellant. Wyatt A. Hoch and Charles R. Curran, of Foulston Siefkin LLP, of Wichita, and James D. Oliver, of the same firm, of Overland Park, for appellees.
Appeal from Sedgwick District Court; Joseph Bribesca and Timothy G. Lahey, Judges.
Vincent F. O'Flaherty, of Law Offices of Vincent F. O'Flaherty, Attorney, LLC, of Kansas City, Missouri, for appellant. Wyatt A. Hoch and Charles R. Curran, of Foulston Siefkin LLP, of Wichita, and James D. Oliver, of the same firm, of Overland Park, for appellees.
Before STANDRIDGE, P.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
The case presents issues pertaining both to coverage under a general liability insurance policy Mid–Continent Casualty Company wrote for Cobblestone Builders, Inc. and to attorney fees that may be due Todd and Vicki Drew because Mid–Continent refused to pay a judgment they won against Cobblestone. For the most part, we affirm the decision of the Sedgwick County District Court finding the policy covered the losses reflected in the judgment and awarding attorney fees to the Drews. We do, however, reverse that portion of the decision requiring Mid–Continent to pay for mold damage, which is excluded from the policy. We also take up the Drews' motion for attorney fees for this appeal and grant that motion in part.
Factual and Procedural History
Because the issues come to us in a garnishment proceeding, the procedural posture and history of the case is convoluted, though no more so than any other insurance coverage dispute presented to the courts in that manner. The parties are fully conversant with the detailed circumstances of the underlying litigation and the garnishment. So we do not undertake an equally detailed recitation of that history. For the sake of context, we offer an abridged version.
In 2007, the Drews hired Ysmael Salas, who was then doing business as Salas Construction, to pave the driveway of their home and to excavate and build a partial basement under the existing dwelling. Salas lacked the necessary licensing to obtain a building permit from the City of Wichita for the basement work. For reasons that are less than clear in the appellate record, Salas prevailed upon Mike Utterback, the owner of Cobblestone, to get the necessary permit from the City. Utterback had the required license, and the permit was issued to Cobblestone.
The Drews had no dealings with Utterback or Cobblestone before or during the project. They did not meet, hire, or contract with Cobblestone. They paid Cobblestone nothing. Nor did they understand Cobblestone to be affiliated with Salas as a general contractor or as a subcontractor on the project. In short, the Drews intended to and did employ only Salas to work on their home. The record evidence indicates Cobblestone received nothing from Salas for getting the building permit and did no work on the house.
Salas apparently made a mess out of the basement construction. After a storm in May 2008, the Drews noticed a measurable amount of water in their basement. We infer from the record that Salas had not yet completed the project. The Drews reviewed the building permit and saw Cobblestone listed as the contractor. They contacted Utterback and expressed their displeasure with the work that had been done. Utterback indicated Cobblestone would make repairs to the basement and to the air conditioning system. The company never did. Salas departed. The record is unclear whether the Drews fired him or he simply abandoned the project.
In October 2008, the Drews sued Salas, Utterback, and Cobblestone in Sedgwick County District Court on various theories for damage to their home. Mid–Continent retained a lawyer to defend Cobblestone under a reservation of rights. The district court granted summary judgment to Utterback on grounds that are immaterial here. Before and during trial, Cobblestone defended claiming it had no part in the substandard work done at the Drews' house. But the case was submitted to the jury on the theory that by obtaining the building permit, Cobblestone had some legal responsibility for enabling Salas to do the work without being licensed and, in turn, for Salas' dismal performance. The jury found for the Drews and apportioned fault and, hence, legal liability equally between Salas and Cobblestone. While the jury was neither required to respond to interrogatories nor to render a special verdict as to the basis for liability, it did enter an itemized verdict on damages. The award totaled $52,200. In due course, the district court entered judgment against Cobblestone for $25,615, reflecting its share of the verdict, plus costs. The district court also entered judgment against Salas, although that has little to do with the issues at hand.
Mid–Continent offered to settle with the Drews on behalf of Cobblestone for $6,000. The Drews rejected that offer. They then served a garnishment on Mid–Continent, seeking any money Mid–Continent held for or owed to Cobblestone, thereby putting in play coverage under the insurance policy. Following discovery, the Drews moved for summary judgment. Mid–Continent countered that various exclusions in Cobblestone's policy limited coverage to $2,515, reflecting damage to electrical equipment and the court costs. The district court found none of the policy exclusions applicable and enforced the garnishment in the amount of the judgment.
The district court then conducted a bench trial on the Drews' claim for attorney fees on the grounds that Mid–Continent violated K .S.A. 40–256 by “refus[ing] without just cause or excuse to pay the full amount of [the Drews'] loss.” The district court found for the Drews and awarded them $19,008.37 in attorney fees. Mid–Continent has timely appealed and challenges the garnishment order and the award of attorney fees. As we noted, the Drews have filed a motion with this court for their attorney fees for the appeal. We address Mid–Continent's contentions and then turn to the Drews' motion.
Mid–Continent's Points on Appeal
Insurance Policy Exclusions
Mid–Continent contends the district court erred in enforcing the garnishment the Drews issued because it owes no money to Cobblestone for losses under the policy, other than for the electrical equipment. Mid–Continent points to various exclusions in the policy issued to Cobblestone as negating coverage for most of the damage to the Drews' house. The district court rejected those arguments, found the policy covered the loss, and enforced the garnishment. We agree except for the exclusion barring coverage for harm from mold. It does apply and precludes coverage for some of the damages the jury awarded.
The district court found for the Drews in the garnishment action on their motion for summary judgment. In considering an appeal from an entry of summary judgment, the reviewing court applies the same standards as the district court. The court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). An issue turning on the interpretation and application of unambiguous contract language presents a question of law and typically may be resolved on summary judgment. Knorp v. Albert, 29 Kan.App.2d 509, 512, 28 P.3d 1024 (interpretation of unambiguous contract presents a matter of law), rev. denied 272 1418 (2001); Johnson v. Johnson, 7 Kan.App.2d 538, 542, 645 P.2d 911 (“The construction and interpretation of a contract unambiguous in its terms is a question of law for the courts.”), rev, denied 231 Kan. 800 (1982).
The parties have parsed the insurance policy Mid–Continent issued to Cobblestone for the district court and again for this court on appeal. There would be little purpose to our quoting at length from the policy in resolving the contested points apart from needlessly extending this opinion.
Mid–Continent relies on six exclusions drawn from the principal policy language and two exclusions included as riders to the policy. The six exclusions appearing in the basic policy are Section I.2.j. (5), Section I.2.j. (6), Section I.2.k., Section I.2.l., Section I.2 .m., and Section I.2.n. Common to all of those provisions, the policy excludes coverage for harm arising from work Cobblestone performed or goods or products it manufactured, sold, or otherwise distributed. The exclusions either refer to “work” genetically or to “your work” or “your product,” which are defined terms in the policy. The operative language relevant here excludes coverage for shoddy or negligent work of Cobblestone resulting in personal injury or property damage. Mid–Continent contends the harm to the Drews' home entails work by Cobblestone and, therefore, falls outside the policy's coverage.
In fashioning that argument, Mid–Continent looks to the term “your work,” used in the policy to mean: (1) “work or operations performed by you or on your behalf;” and (2) “materials, parts or equipment furnished in connection with such work or operations.” Mid–Continent contends that Cobblestone performed work on the Drews' house by obtaining the building permit and that the building permit constituted “materials” furnished for that work. Mid–Continent's position pushes well beyond any sort of plain or fair meaning of those words. Work entails labor or effort directly applied to or around the house to effect the physical improvements the Drews contracted for with Salas. See The American Heritage Dictionary 1995 (5th ed.2011) (work means “[p]hysical or mental effort or activity directed toward the production or accomplishment of something”); Merriam–Webster's Collegiate Dictionary 1442 (11th ed.2003) (work means “activity in which one exerts strength or faculties to do or perform something”). Fairly considered, the building permit amounts to a condition precedent to doing work—and a bureaucratic one at that. Thus, one might reasonably say, “They can't start work until they get the permit.” If the house were in an unregulated area outside the city, no permit would be required, but the effort necessary to make the actual improvements—the work—wouldn't be any different. Mid–Continent wants to define work in an unnatural, quite artificial way. That doesn't get the job done here.
Mid–Continent's suggestion that the building permit ought to be considered materials comes across as even more strained. See The American Heritage Dictionary 1083 (5th ed.2011) (material means “[t]he substance or substances out of which a thing is or can be made”); Merriam–Webster's Collegiate Dictionary 765 (11th ed.2003) (material means “something ... that may be worked into a more finished form”). Under the policy language, materials are grouped with parts or equipment furnished for the work. Equipment suggests tools used to do the work, such as an excavator or a table saw. Parts connote items supplied for and incorporated into the project in a largely unchanged condition. Light fixtures, faucets, and air conditioners reasonably might be considered parts. Materials would be akin to parts, stuff used to make improvements that might be cut, painted, or otherwise incorporated into the property. Lumber and sheetrock would be materials. Fitting a building permit into that trilogy requires linguistic generosity of a high order favoring Mid–Continent.
The law, however, doesn't operate that way in construing language in insurance policies. If the wording is “doubtful” or “ambiguous,” it must be read against the insurer and in favor of the insured. Schartz v. Kansas Health Ins. Ass'n., 275 Kan. 515, Syl. ¶ 2, 66 P.3d 866 (2003) (ambiguous policy language “is given the construction most favorable to the insured”); Brumley v.. Lee, 265 Kan. 810, Syl. ¶ 1, 963 P.2d 1224 (1998). If not, the words should be given their usual meanings. Schartz, 275 Kan. at 519 (words in an insurance policy should “be given the natural and ordinary meaning they convey” unless some contrary intent appears from the face of the policy); Brumley, 265 Kan., Syl. ¶ 6; State Farm Fire & Cas. Co. v. Martinez, 26 Kan.App.2d 869, 876, 995 P.2d 890,rev. denied 269 Kan. 934 (2000). Mid–Continent essentially winds up hoisted by its own petard. If the relevant words in the policy enjoy their usual meanings, they do not include building permits. Only with Mid–Continent's especially elastic (or doubtful) interpretation do they stretch that far. But any elasticity must benefit the insured, rather than insurer. So we reject Mid–Continent's definitions and its argument. We rely on the language in those policy exclusions in coming to our conclusion. The words in the exclusions are unambiguous, and they do not bar coverage in this case.
We do not, however, adopt the district court's reasoning that the positions Cobblestone took in the underlying case to the effect that it neither did work on the Drews' house nor acted in an agency relationship with Salas somehow now preclude Mid–Continent from taking different positions in resisting the garnishment. Before and during trial, Cobblestone argued it had no legal responsibility or liability for the work. And Mid–Continent has effectively advanced the opposite position by contending the policy provides no coverage precisely because Cobblestone worked on the project within the meaning of the exclusions. Likewise, the district court's rulings on summary judgment in the underlying case do not constrain Mid–Continent now, contrary to the district court's reasoning in deciding the garnishment action. When an insurer provides a defense to its insured under a reservation of rights, as Mid–Continent did for Cobblestone, ajudgment against the insured and the facts inhering in that judgment do not curtail later litigation of the coverage issues. State Farm Fire & Casualty Co. v. Finney, 244 Kan. 545, 549, 770 P.2d 460 (1989); Davin v. Athletic Club of Overland Park, 32 Kan.App.2d 1240, Syl. ¶ 3, 96 P.3d 687 (2004).
Mid–Continent also submits that two riders to Cobblestone's policy exclude coverage here. One excludes harm from “earth movement,” and the other harm from “fungus, mildew, and mold.” The riders apply whether or not the conditions arose from Cobblestone's work. In other words, the policy does not insure against loss from those conditions under any circumstances.
Under the earth movement rider, there is no coverage for injury or damage resulting from “earthquake, landslide, mudflow, subsidence, settling, slipping, falling away, shrinking, expansion, caving in, shifting, eroding, rising, tilting or any other movement of land, earth, or mud.” The Drews noticed cracks in floors and walls throughout the house and other structural problems. Mid–Continent argues that the damage to the Drews' house occurred because floor joists moved and the house more or less sunk to some measurable extent as a result of the work Salas did in constructing the new basement. Several expert witnesses testifying during the jury trial attributed the damage to movement of the house.
But Mid–Continent again resorts to an untenable expansion of the policy language in an effort to deny coverage under the earth movement rider. The rider is inapplicable here for two reasons. By its terms, the rider applies to naturally occurring changes. Conspicuously missing are words that would commonly reach manmade causes for movement of earth, such as excavation, digging, or the like. The rider, therefore, does not apply to the facts of this case. But Mid–Continent wants to read it that way. In addition, Mid–Continent has offered no evidence that the damage to the Drews' house resulted from movement of soil or earth, as by excavation Salas may have done in constructing the basement. The shifts in the house may have resulted from Salas' inept efforts to raise the house on jacks or to frame, shore, or finish the basement. The garnishment record is silent. Either way, however, the plain language of the earth movement rider does not come into play.
The second rider excluding damage resulting from mold and mildew is another matter. The rider provides that the policy does not cover damage or injury “in any way related to any fungus, mildew, mold or resulting allergens” or costs associated with efforts to eliminate or remove them. The rider and its exclusion are without qualification or limitation. The exclusion is absolute. Under the policy, Mid–Continent will not pay to get rid of mold or for any harm mold may have caused. The Drews do not dispute the rider's plain meaning.
The parties agree the jury awarded damages of $5,000 for mold that grew in an existing basement area and another $1,200 to get rid of mold on various household items. Of that $6,200, half would have been attributable to Cobblestone and became part of the judgment against it. Given the language of the mold rider, Mid–Continent is not obligated to pay that portion of the judgment and, therefore, would not owe Cobblestone $3,100 for those items. The district court erred in finding Mid–Continent would be required to turn over that amount to the Drews on their garnishment. The error requires remand to the district court to reduce the judgment entered against Mid–Continent in the garnishment by $3,100 and to make a commensurate adjustment in the interest due on the judgment.
On appeal, the Drews argued the $6,200 should be subtracted from the total verdict of $50,200, leaving $44,000 that would be covered under Mid–Continent's policy. Because the judgment of $25,100 against Cobblestone is less than that, the Drews submit Mid–Continent should pay the full judgment. The Drews cite no authority for their creative bookkeeping. The argument is flawed in several respects. It effectively shifts the full loss related to mold to Salas, despite the jury's verdict apportioning fault equally between him and Cobblestone. At the same time, it obligates Mid–Continent to pay for a casualty loss the company plainly excluded from the insurance contract. Mid–Continent's legal duty to pay rests only on that contractual obligation. The Drews' position ignores that duty and effectively rewrites the insurance contract. The Drews may enforce that portion of the judgment against Cobblestone. Award of Attorney Fees to the Drews under K.S.A. 40–256
Mid–Continent contends the district court erred in awarding attorney fees to the Drews for the garnishment proceeding. As provided in K.S.A. 40–256, a court may award reasonable attorney fees to a party required to litigate coverage with an insurance company that has refused to pay a loss “without just cause or excuse.” The Drews may seek attorney fees under the statute because, as garnishors, they functionally stand in the place of Cobblestone, as Mid–Continent's insured, and assert its right to payment under the policy. See Smith v. Blackwell, 14 Kan.App.2d 158, Syl. ¶ 5, 791 P.2d 1343 (1989), rev. denied 246 Kan. 769 (1990).
Whether an insurance company's refusal to pay lacks just cause or excuse must be determined on the circumstances of the particular case. Smith, 14 Kan.App.2d at 165. The appellate courts review decisions granting or denying attorney fees under K.S.A. 40–256 using an abuse of discretion standard. South Central Kansas Health Ins. Group v. Harden & Co. Ins. Services, Inc., 278 Kan. 347, 354, 97 P.3d 1031 (2004); Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 261–62, 815 P.2d 550 (1991). A district court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A trial court errs in that way when its decision ‘ “goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a trial court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) (outlining all three bases for an abuse of discretion), cert. denied132 S.Ct. 1594 (2012).
Mid–Continent contends the attorney-fee award under K.S.A. 40–256 amounted to an abuse of the district court's discretion because the policy provided no coverage for the damages the jury awarded, except for the electronic equipment. And, in any event, Mid–Continent submits it had just cause or excuse not to pay based on reasonable interpretations of the policy exclusions even if those interpretations ultimately might have been incorrect. The Kansas Supreme Court has recognized that attorney fees may not be allowed under K.S.A. 40–256 “when an insurance policy does not cover a claim.” South Central Kansas Health Ins. Group, 278 Kan. at 355.
Mid–Continent does not suggest its refusal to pay was based on disputed facts turned up in its investigation of the claim that would have precluded coverage. For example, had there been some evidence that Cobblestone had done even a little on-site work, Mid–Continent might have declined coverage on that basis. A factual dispute of that sort would have presented a different question, and likely a closer one, on the justness of a refusal to pay. But as the refusal-to-pay issue has been joined, Mid–Continent's position depends entirely on its interpretation of the policy language in light of an undisputed set of facts showing that Cobblestone did nothing beyond obtaining the building permit and did that without compensation and for mysterious reasons.
We do not repeat our discussion of the policy exclusions. But that analysis demonstrates the district court did not abuse its discretion in concluding Mid–Continent acted without just cause or excuse in refusing to pay the judgment against Cobblestone, less the $3,100 awarded for mold-related damages. Had Mid–Continent timely tendered all but the $3,100, the Drews would not have been entitled to attorney fees.
On appeal, Mid–Continent does not contest the amount of the fee award as unreasonable. That is, it effectively concedes the hourly rates of and time spent by counsel for the Drews in litigating the garnishment to be appropriate.
Nonetheless, the Kansas Supreme Court has directed that statutory attorney-fee awards generally should be measured against the criteria for reasonable fees set out in Rule 1.5(a) (2011 Kan. Ct. R. Annot. 470) of the Kansas Rules of Professional Conduct. Johnson v. Westhoff Sand Co., 281 Kan. 930, 940–41, 135 P.3d 1127 (2006). One of the factors considers “the amount involved and the results obtained.” Rule 1.5(a) (2011 Kan. Ct. R. Annot. 471). Because we have set aside $3,100 of the principal Mid–Continent must pay on the underlying judgment—or about 12 per cent—the district court may reconsider the attorney-fee award on the garnishment if so requested. The $3,100 reduction, while not huge either in absolute terms or as a percentage of the judgment, is more than trifling. The district court is in a better position to make a determination about any commensurate adjustment in the attorney-fee award. We do not mean to suggest an adjustment would be in order and offer no opinion one way or the other.
The Drews' Motion for Attorney Fees on Appeal
Following oral argument to this court, the Drews timely filed a motion for attorney fees and costs associated with the appeal, as provided in Supreme Court Rule 7.07 (2011 Kan. Ct. R. Annot. 64). The rule permits an appellate court to “award attorney fees for services on appeal in any case in which the trial court had [that] authority.” Rule 7.07(b) (2011 Kan. Ct. R. Annot. 64). By virtue of K.S.A. 40–256, the district court had such authority, and this court may, in turn, entertain a fee request. The Drews seek $17,387 .50 in attorney fees and $184.46 in expenses for the appeal.
We, then, measure the attorney-fee request by the same substantive standards set out earlier in our review of the district court's award. That is, did Mid–Continent's decision to appeal amount to a refusal to pay a claim covered under the policy “without just cause or excuse?” Our determination of the issue is not preordained by our decision on the district court's award of attorney fees. We reviewed that award for abuse of discretion and found none. That standard is an especially forgiving one and would require that we affirm even if we might not have ruled the same way had we been sitting on the bench in the district court. We are not similarly constrained with a fee request presented to us in the first instance.
In response to the motion, Mid–Continent takes substantially the same position that it did in appealing the district court's fee award: The policy language, as set forth in the exclusions, created “a good faith dispute” about coverage, and, therefore, Mid–Continent's refusal to pay and its appeal rested on a just cause or excuse. Mid–Continent does not dispute the reasonableness of the amount of the attorney fees the Drews have requested for the appeal.
Based on our examination of the policy exclusions, as discussed earlier, we conclude that Mid–Continent did not have a sound or reasoned basis to deny coverage except for the damages related to mold. Mid–Continent's appeal, therefore, was not founded on a legitimate legal dispute and lacked just cause or excuse. For that reason, the Drews are entitled to recover reasonable attorney fees under Rule 7.07.
Because Mid–Continent does not dispute the reasonableness of the hourly rates or the time devoted to the tasks as detailed in the attachments to the motion for fees, we do not independently review those aspects of the fee request. Likewise, Mid–Continent tacitly accedes to the requested expenses.
In this case, the Drews have not won every point on appeal. We have found that Mid–Continent properly refused to cover losses resulting from mold damage. Consistent with Mid–Continent's position, it should not be liable for the Drews' attorney fees on appeal that might be fully and completely segregated to the narrow issue of coverage for mold-related harm. But a party may recover attorney fees for work intertwined with and essential to both successful and unsuccessful issues. DeSpiegelaere v. Killion, 24 Kan.App.2d 542, Syl. ¶ 2, 947 P.2d 1039 (1997). The billing information the Drews submitted in support of their motion does not delineate the time spent on particular issues. And Mid–Continent has suggested no specific reduction. Given the scope of the contested claims and the abbreviated argument the Drews devoted to the mold rider on appeal, we believe a reduction of $180 to be appropriate, reflecting 1 hour of lawyer time in drafting that portion of the appellate brief.
We also have some independent obligation to determine that the requested attorney fees are “for services on appeal” and, therefore, come within the scope of Rule 7.07(b). Based on the documentation of the work done by the Drews' lawyers, the request includes tasks unconnected with the appeal. There are a number of entries for efforts to collect the judgment apart from the appeal of this garnishment and for securing a supersedeas bond from Mid–Continent. That work is not sufficiently connected to the appeal itself to be compensable under Rule 7.07. We disallow the following entries: April 1,2011; April 4, 2011; April 8, 2011; April 19, 2011 (both); April 28, 2011 (both); and May 4, 2011 (both). The disallowed work represents $1,462.50 in fees. We deny that much of the request based on Rule 7.07 only. We do not consider whether the work otherwise might be compensable under K.S.A. 40–256, though unrelated to the appeal. On remand, the district court may make that determination if so asked.
We grant the Drews' motion for attorney fees and expenses on appeal in part and deny it in part. The Drews are awarded $15,745.00 in fees and $184.86 in expenses. The district court should include those amounts in the revised judgment entered on remand.
Conclusion
To summarize the result in this case:
The district court's decision in the garnishment action finding coverage under the policy Mid–Continent issued to Cobblestone is affirmed, except as to damages the jury awarded to the Drews for mold-related harm to their home. There is no coverage under the policy for those damages. On remand, the district court needs to deduct $3,100, reflecting Cobblestone's proportionate share of those damages, from the judgment entered against Mid–Continent in the garnishment and to recalculate the interest Mid–Continent owes on the revised judgment.
The district court's decision to award attorney fees to the Drews for the garnishment action, under K.S.A. 40–256, is affirmed. If requested by a party, the district court may reconsider the amount of the fee award in light of either the reduction in the garnishment judgment against Mid–Continent or the Drews' attorney fees for postjudgment collection efforts and other work unrelated to this appeal.
This court awards the Drews $15,745.00 in fees and $184.86 in expenses against Mid–Continent related to this appeal of the garnishment order and judgment, as provided in Rule 7.07 and K.S.A. 40–256. The district court shall include those amounts in the revised judgment to be entered against Mid–Continent on remand.
Affirmed in part, reversed in part, and remanded with directions.