Considering an appeal from that order, the Court of Appeals reversed the award of appellate attorney fees, determining Snider had waived his right to appellate attorney fees by not filing a motion for attorney fees with the Court of Appeals in the prior appeal. Snider v. American Family Mut. Ins. Co., 45 Kan.App.2d 196, 205–08, 244 P.3d 1281 (2011)( Snider II ). Now, on petition for review of that decision, Snider asks us to reverse the Court of Appeals and overrule Evans or exclude Evans' holding from those cases where a fee applicant did not prevail in the district court.
The trial court "is an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise in determining their value." Snider v. Am. Family Mut. Ins. Co., 244 P.3d 1281, 1285 (Kan. Ct. App. 2011). Here, defendants maintain they are entitled to all fees related to the litigation, not just the fees incurred in relation to their motion to strike.
“Where the trial court has the authority to grant attorney fees, its decision is reviewed under the abuse of discretion standard.” Snider v. American Family Mut. Ins. Co. , 45 Kan.App.2d 196, 199, 244 P.3d 1281 (2011), aff'd 297 Kan. 157, 298 P.3d 1120 (2013).First, as Dean argues in his brief, Melissa's argument must fail because she did not object to the trial court's failure to rule on her attorney fees request.
In fact, both the Kansas Supreme Court and our court have awarded fees at higher hourly rates in other cases. E.g., In re Estate of Strader, 300 Kan. ––––, ––––, 339 P.3d 769, 778 (2014) (approving fees at $250–per–hour rate in probate matter); Snider v. American Family Ins. Co., 45 Kan.App.2d 196, 199, 210–11, 244 P.3d 1281 (2011) (approving fees based on hourly rates of $150 and $225 per hour in insurance-coverage dispute), aff'd in relevant part, 297 Kan. at 175, 298 P.3d 1120 (2013).Nor does K.S.A. 22–4507(c), which expressly applies only to attorneys appointed to represent indigent criminal defendants, set a limit on fees in other types of cases.
[Citation omitted.]” Snider v. American Family Mut. Ins. Co., 45 Kan.App.2d 196, 200, 244 P.3d 1281 (2011), rev. granted September 21, 2011.In deciding the reasonableness of attorney fees, the eight factors set forth in Rule 1.5(a) (2010 Kan. Ct. R. Annot 470) of the Kansas Rules of Professional Conduct (KRPC) should be considered.
In reviewing an award of attorney fees, an appellate court does not reweigh the testimony or the evidence presented or reassess the credibility of witnesses. Snider v. American Family Mut. Ins. Co., 45 Kan.App.2d 196, 200, 244 P.3d 1281 (2011). In evaluating the reasonableness of an award of attorney fees, the panel must consider the eight factors set forth in Supreme Court Rule 1.5(a) (2011 Kan. Ct. R. Annot. 460) of the Kansas Rules of Professional Conduct. Palmer v. Bill Gallagher Enterprises, LLC, 44 Kan.App.2d 560, 571, 240 P.3d 592 (2010).
Although the appellate court is also an expert on attorney fees, we will not substitute our judgment for that of the Commission on the amount of attorney fees unless required to do so in the interest of justice. See Snider v. American Family Mut. Ins. Co., 45 Kan.App.2d 196, 200, 244 P.3d 1281 (2011), rev. granted 292 Kan. 966 (2011) (citing Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 [2006] ). In its brief, CURB ignores the testimony of its own expert witness.
A panel of this court recently found that that in determining attorney fees under K.S.A. 40–908, “the amount involved and the results obtained” is one of the factors to be considered under Rule 1.5(a),” however, “it should not form the sole basis for the award.” Snider v. American Family Ins. Co., 45 Kan.App.2d 196, 202, 244 P.3d 1281,rev. granted 292 Kan. 966 (2011) (pending).