Opinion
No. 109,092.
2013-09-27
Sam DODGE and Mary Dodge, Appellees, v. DAVIS REMODELING, REPAIR & CUSTOM CONSTRUCTION INC., Appellant.
Appeal from Johnson District Court; James F. Vano, Judge. Linus L. Baker, of Stilwell, for appellant. Bruce W. Beye, of Overland Park, for appellees.
Appeal from Johnson District Court; James F. Vano, Judge.
Linus L. Baker, of Stilwell, for appellant. Bruce W. Beye, of Overland Park, for appellees.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Sam and Mary Dodge entered into three separate contracts with Davis Remodeling, Repair & Custom Construction, Inc. (Davis Remodeling) for the remodeling of their home. After a dispute arose between the parties, the Dodges sued Davis Remodeling alleging a breach of each of the contracts. In response, Davis Remodeling filed a counterclaim alleging that the Dodges breached each of the contracts. A jury reached a split decision, finding that Davis Remodeling had breached one of the contracts and that the Dodges had breached the other two contracts. The district court ultimately granted Davis Remodeling a judgment in the amount of $4,172.
Following trial, the district court denied Davis Remodeling's motion to recover attorney fees under the terms of a siding contract, which was the only contract containing an attorney fees provision. The district court refused to order any attorney fees, finding among other things, that Davis Remodeling had failed to segregate the attorney fees incurred as a result of the siding contract. On appeal, we conclude that the district court acted within its discretion in denying Davis Remodeling's request for attorney fees. Thus, we affirm.
Facts
The Dodges and Davis Remodeling entered into three contracts relating to the remodeling of the Dodges' home. Problems arose during the remodeling project, and on January 28, 2009, the Dodges filed a petition against Davis Remodeling alleging that it had breached each of the three contracts. In response, Davis Remodeling filed an answer and counterclaims for breach of contract against the Dodges.
The case eventually went to trial on the three breach of contract claims. On December 9, 2011, the jury entered a verdict finding that Davis Remodeling had breached a contract with the Dodges dated July 29, 2008. For this breach, the jury found that Davis Remodeling owed the Dodges $12,108 in damages. But the jury found that the Dodges breached a siding contract dated October 18, 2008. For this breach the jury found that the Dodges owed Davis Remodeling $7,280. The jury also found that the Dodges breached a contract dated January 2, 2009. For this breach, the jury found the Dodges owed $9,000 in damages to Davis Remodeling.
The district court accepted the jury's verdict and entered a journal entry granting judgment in favor of Davis Remodeling in the amount of $4,172. Davis Remodeling filed a motion requesting $42,669 .79 in attorney fees from the Dodges for their breach of the siding contract. Although they are not in the record, the other two contracts evidently did not contain attorney fee provisions.
After initially granting the Dodges' motion for a new trial, the district court sua sponte reconsidered its decision and set it aside on July 13, 2012. Thereafter, on August 20, 2012, Davis Remodeling filed a supplemental motion for attorney fees, increasing the amount requested to $47,136.51. On September 5, 2012, the district court denied Davis Remodeling's motion for attorney fees under the siding contract. Specifically, the district court found that Davis Remodeling had failed to differentiate between those attorney fees relating to the siding contract and those fees relating to the other two contracts. Further, the district court found that Davis Remodeling did not perform the services required under the siding contract, which contemplated that the Dodges would not be responsible to pay until certain events occurred.
On September 18, 2012, the Dodges filed a notice of appeal but apparently never docketed it with this court. Davis Remodeling then filed a motion on September 27, 2012, to vacate or reconsider the district court's denial of its motion for attorney fees. Additionally, Davis Remodeling filed a second or amended motion for attorney fees on October 1,2012.
In the second or amended motion, Davis Remodeling finally attempted to apportion the attorney fees incurred as a result of litigating the siding contract from those incurred as a result of litigating the other two contracts. Specifically, Davis Remodeling requested all of the attorney fees incurred after February 28, 2012. Regarding the fees incurred prior to that date, Davis Remodeling figured that it spent 40% of its time on the siding contract. Hence, the modified request was for $20,444 in attorney fees.
On November 13, 2012, the district court filed a journal entry denying Davis Remodeling's motion to vacate as well as its second motion for attorney fees. The Dodges filed another notice of appeal on November 27, 2012, and on December 1, 2012, Davis Remodeling filed a cross-appeal. Because the Dodges' notice of appeal was not timely filed, their appeal was dismissed. Accordingly, this opinion only addresses Davis Remodeling's cross-appeal.
Analysis
Davis Remodeling argues that the district court erred in denying its motions for attorney fees under the terms of the siding contract. In Kansas, “[a] court may not award attorney fees absent statutory authority or an agreement by the parties.” Unruh v. Purina Mills, 289 Kan. 1185, 1200, 221 P.3d 1130 (2009). “Where the trial court's authority to award attorney fees is questioned, an appellate court is presented with a question of law over which it exercises unlimited review.” Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, Syl. ¶ 5, 173 P.3d 642 (2007). “[O]nce it is determined that the district court had authority under an agreement to grant attorney fees, the district court's decision is reviewed under an abuse of discretion standard.” Westar Energy, Inc. v. Wittig, 44 Kan.App.2d 182, 203, 235 P.3d 515 (2010); see also Tyler v. Employers Mut Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002).
Here, the parties agree that the siding contract included a provision that provided for the Dodges paying Davis Remodeling's attorney fees “[s]hould it become necessary to seek legal assistance in the collection of any monies due” under the contract. Because the jury found that the Dodges breached the siding contract and Davis Remodeling did not breach the siding contract, we conclude that the district court had the authority to award attorney fees under the terms of the contract. But this does not end our analysis.
A district court has wide discretion to determine the amount of attorney fees. See In re Marriage of Strieby, 45 Kan.App.2d 953, 973, 255 P.3d 34 (2011). And a district court abuses its discretion when no reasonable person would take the view adopted by the district court. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006). Moreover, Rule 1.5(a) (2012 Kan. Ct. R. Annot. 492) of the Kansas Rules of Professional Conduct lists eight factors a district court must consider when determining the reasonableness of a fee. Although the parties may have different views of what is reasonable, the district court is an expert in determining reasonable attorney fees. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 940 135 P.3d 1127 (2006).
In the present case, the district court awarded no amount of attorney fees. In reaching this decision, the district court found that the claims for breach of the three contracts—only one of which contained an attorney fee provision—“were not [so] inextricably tied together that they could not have been recorded separately and specifically on counsel's detailed time sheets.” Likewise, the district court found that “the case was submitted as three separate contracts with questions to the jury regarding the alleged breaches of three separate contracts.” Both of these findings were supported by substantial evidence, and we will not substitute our judgment for that of the district court on such matters.
“In a lawsuit involving multiple claims or multiple theories, an award of attorney fees must be based on the time spent by the prevailing party's attorney on the claim or theory under which attorney fees are allowable. Where several causes of action are joined and only some of them permit the award of attorney fees, the prevailing party's attorney is under a duty to segregate the work on several causes in determining an attorney fee award.” (Emphasis added.) DeSpiegelaere v. Killion, 24 Kan.App.2d 542, Syl. ¶ 1, 947 P.2d 1039(1997).
Accordingly, if the prevailing party's attorney fails to properly segregate a claim of attorney fees, he or she will “ not be entitled to recover any attorney fees ”(Emphasis added.) Werdann v. Mel Hambelton Ford, Inc., 32 Kan.App.2d 118, 133, 79 P.3d 1081 (2003), rev. denied 277 Kan. 928 (2004).
It is undisputed that counsel for Davis Remodeling made no attempt to segregate his work on the various breach of contract claims. Rather, Davis Remodeling sought to recover all of his attorney fees, in the amount of $42,669.79. Subsequently, Davis Remodeling filed a supplement to its motion for attorney fees in which it again sought to recover all of its attorney fees and increased the amount sought to $47,136.51. Once more, Davis Remodeling's attorney made no attempt to segregate his work.
It was not until nearly a month after the district court ruled on Davis Remodeling's request for attorney fees that its counsel made any effort to segregate his work on the three breach of contract claims. In its second or amended motion for attorney fees, counsel estimated that 40% of his time was spent on the siding contract, which reduced the amount requested to $20,444.00. But he still did not document the time spent on the siding contract claim as opposed to the other two claims. Consequently, the district court also denied the second or amended motion for attorney fees.
Under the unique circumstances presented, we cannot say that no reasonable person would have reached the same conclusion as the district court. See Automotive Global Technologies, Ltd. v. Sonnax Industries, Inc., 283 Fed. Appx 575, 577 (9th Cir.2008) (“The district court acted within its discretion to deny [attorney] fees because [the prevailing party] failed to segregate the fees attributable to its successful claims.”). Despite having three opportunities to segregate his time between the multiple breach of contract claims, counsel for Davis Remodeling failed to do so. We, therefore, conclude that the district court did not abuse its discretion in awarding no attorney fees.
Finally, because Davis Remodeling did not prevail in this appeal, we deny the motion for appellate attorney fees filed in this court on August 15, 2013.
Affirmed.