Village Shopping Center Partnership Versus Kimble Development, LLC and Michael Kimble ( 2019 )

VILLAGE SHOPPING CENTER NO. 19-CA-238
PARTNERSHIP
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
KIMBLE DEVELOPMENT, LLC AND
MICHAEL KIMBLE STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 82,418, DIVISION "C"
HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING
December 30, 2019
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Stephen J. Windhorst
AMENDED; AFFIRMED AS AMENDED
SJW
FHW
JGG
COUNSEL FOR PLAINTIFF/APPELLANT,
VILLAGE SHOPPING CENTER PARTNERSHIP
Leonard A. Davis
Charles M. King
COUNSEL FOR DEFENDANT/APPELLEE,
KIMBLE DEVELOPMENT, LLC AND MICHAEL KIMBLE
David C. Fleshman
David B. Phelps
Ross A. Dooley
WINDHORST, J.
In this appeal, appellant, Village Shopping Center Partnership (“Village”),
seeks review of the trial court’s award of attorneys’ fees of $24,173.64, which was
less than half of the amount of the $64,316.09 in attorneys’ fees sought by Village.
After review of the record, we amend the trial court’s judgment awarding $24,173.64
in attorneys’ fees; and render judgment awarding Village $44,316.09 in attorney
fees.
FACTS AND PROCEDURAL HISTORY
The background of this case is set forth in Village Shopping Center
Partnership v. Kimble Development, LLC and Michael Kimble, 18-740 (La. App. 5
Cir. 4/24/19), 271 So.3d 376.
In 2013, appellee, Kimble Development, LLC (“Kimble”), entered into a
Contract for Development with Village to build an O’Reilly Auto Parts store on
Village’s property. According to the contract, Village agreed to pay Kimble a
development fee of $35,000, and Kimble agreed to be responsible for all
construction costs of the building exceeding $688,944.00, with the exception of
unforeseen or uncontrollable costs such as asbestos or environmental mitigation and
site clean-up. Pursuant to a contract addendum, the construction costs were adjusted
to $713,413.71, thereby increasing Kimble’s obligation for costs exceeding that
amount. Village ultimately paid construction costs of $761,700.99, in addition to
the $35,000.00 development fee. Village sought reimbursement from Kimble for
the overpayment. Kimble refused to pay Village for the overpayment and litigation
ensued.
After discovery concluded, Village filed a motion for summary judgment,
seeking to recover from Kimble the overpayment owed under the contract. The trial
court granted Village’s summary judgment motion on July 20, 2018, awarding
$48,347.28. On appeal of that judgment, this Court affirmed the trial court’s
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judgment granting Village’s motion for summary judgment and the award of
damages to Village. Village Shopping Center Partnership, supra.
In Village’s petition for damages and accounting and reimbursement, Village
also asserted that it would be entitled to attorneys’ fees and costs from Kimble. The
contract contained a provision stating that the “prevailing party in any litigation or
dispute regarding breach and enforcement of this Agreement shall be entitled to
reasonable attorneys’ fees and court costs from the non-prevailing party.” Village
sought $64,316.09 in attorneys’ fees and costs related to its contractual claim against
Kimble. Kimble objected to this amount.
In conjunction with seeking its attorneys’ fees, Village set forth the work
necessary to obtain a judgment in this contractual matter. After attempts to resolve
the matter amicably failed, Village’s counsel investigated Kimble and drafted and
filed the petition. In response to the petition, Kimble filed a peremptory exception
of no right of action, which required consultation with the client, legal research,
drafting and filing an opposition, and a court appearance. Kimble’s exception was
ultimately denied. Village also had to plan and prepare a defense to Kimble’s
affirmative defenses asserted in its answer. Village issued and responded to
discovery requests, reviewing more than 2,000 pages of documents from Kimble’s
production. Village prepared for corporate representative depositions by compiling
exhibits totaling hundreds of pages and preparing outlines for the depositions of
Kimble’s two corporate representatives.
After reviewing the deposition transcripts and discovery documents, Village’s
counsel prepared a Motion for Summary Judgment, a statement of essential legal
elements, a statement of undisputed facts, and organized sixteen (16) exhibits to
attach to the motion. Village also drafted a reply to Kimble’s opposition and argued
the motion in trial court. All of this was done successfully to obtain summary
judgment in favor of Village for the full amount requested.
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In support of its claim for attorneys’ fees, Village submitted invoices and
billing statements alleging entitlement to $64,316.09 in attorneys’ fees and costs.
Kimble submitted two oppositions to Village’s motion for attorneys’ fees, and
Village filed two reply memos. Relative to the amount of the fees, Village asserted
that all fees were reasonable, as well as emphasized that the litigation took
approximately two years, and that it obtained a judgment for the full amount sought
in the petition. Hearings were held on October 29, 2018 and December 13, 2018 to
determine the amount of attorneys’ fees and costs to which Village was entitled. At
the hearing, Village’s counsel testified regarding the fees incurred. Upon review,
the trial court rendered judgment in favor of Village and against Kimble for
attorneys’ fees, and awarded Village $24,173.64, less than half of the amount of
attorneys’ fees sought in its petition. This appeal follows.
DISCUSSION
On appeal, Village asserts that the trial court abused its discretion in reducing
its attorneys’ fees by 60% without analyzing the Rivet factors for reasonableness
and without providing any basis for the reduction other than that the fees were
excessive because they exceeded the main demand. Village also challenges the
reduction of its attorneys’ fees on the basis that the reduction was more than
requested by Kimble, the defendant responsible for paying the fees.
Right to Recover Reasonable Attorneys’ Fees
In Louisiana, the prevailing party may not recover attorneys’ fees except
where authorized by contract or statute. State, Dep’t of Trans. and Development v.
Williamson, 597 So.2d 439 (La. 4/20/92). Courts may inquire as to the
reasonableness of attorneys’ fees as part of their prevailing, inherent authority to
regulate the practice of law. Id. An award of attorneys’ fees will not be modified
on appeal absent a showing of an abuse of discretion. Master Credit Corp. v.
19-CA-238 3
Campbell & Associates, Inc., 98-349 (La. App. 4 Cir. 11/25/98), 724 So.2d 266,
267.
When awarding attorneys’ fees, courts must consider the following factors in
determining a reasonable amount of attorneys’ fees to award: (1) the ultimate result
obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the
amount of money involved; (5) the extent and character of the work performed; (6)
the legal knowledge, attainment, and skill of the attorneys; (7) the number of
appearances involved; (8) the intricacies of the facts involved; (9) the diligence and
skill of counsel; and (10) the court’s own knowledge. Rivet v. State, Dep’t of Trans.
and Development, 96-145 (La. 9/5/96), 680 So.2d 1154.
Case law does not require courts to weigh one particular factor more than the
others; instead, courts must consider each factor in light of the specific facts of each
case. Brandner v. Staf-Rath, L.L.C., 12-62 (La. App. 5 Cir. 5/31/12), 102 So.3d 186,
189-90, writ denied, 12-2196 (La. 11/21/12), 102 So.3d 62, and writ denied, 12-
2210 (La. 11/21/12), 102 So.3d 62. Courts consider the above factors in all cases to
determine reasonable attorneys’ fees to be awarded regardless of whether the right
to attorneys’ fees is by statute or contractual provision. Id. The court is not bound
by a contingency fee contract or the amount actually charged by the attorney.
St. Blanc v. Stabile, 12-677 (La. App. 5 Cir. 4/24/13), 114 So.3d 1158.
Village first asserts that under Louisiana law, attorneys’ fees are not per se
unreasonable if they are larger than the amount in controversy. Second, Village
asserts that the trial court erred in reducing their attorneys’ fees without considering
the Rivet factors, and relying only on the fact that the fees were more than the main
demand. Third, Village asserts that the trial court did not provide a rational basis for
reducing their fees by more than sixty percent. Village argues that the attorneys’
fees sought are reasonable given the ultimate result obtained was a successful
summary judgment for the entire amount claimed under the contract, and the amount
19-CA-238 4
of work that went into investigation, drafting pleadings, interviews and deposition.
Village also argues that this was not a simple contract case; and that Kimble denied
liability, asserted several affirmative defenses, filed a peremptory exception, and
responded with voluminous discovery.
Kimble asserts the record shows that the trial court considered the Rivet
factors in setting the award inasmuch as the parties thoroughly briefed and argued
the factors and their application to this case. Kimble also relies on the fact that the
trial judge was the same judge who presided over the Rivet case and was fully aware
of and familiar with the Rivet factors. In arguing that the attorneys’ fees sought were
unreasonable, Kimble’s primary argument is related to the nearly $35,000 bill for
preparing the motion for summary judgment on the contractual provision at issue.
Kimble argues there is no basis upon which to find the trial court’s award of
$24,173.64 manifestly erroneous and asserts the judgment should be affirmed.
Upon review of the record, we agree that the record indicates the trial court
did not properly consider the Rivet factors in setting the attorneys’ fees in this matter.
In its reasons for judgment, the trial court stated “this Court opines that the amounts
sought by plaintiff shocks the conscience” and that “[f]or this Court to award the
amount plaintiffs claim as attorney’s fees and costs would be tantamount to awarding
a prevailing party an ‘open checkbook’ to the losing party’s bank account.” The trial
court also stated that “the uppermost amount this Court can award as attorneys’ fees
in this matter is 50% of the amount of the judgment awarded previously.” While the
trial court is not required to explicitly analyze each and every Rivet factor, the record
indicates that the trial court found the attorneys’ fees per se unreasonable based
solely on the fact that they were greater than the amount in controversy. As required
by the law, there is no indication that the trial court considered the extent and
character of the work performed, the legal knowledge required, the number of court
appearances, the intricacies of the facts involved or the diligence and skill of counsel.
19-CA-238 5
Inasmuch as the trial court did not fully consider the Rivet factors in determining the
appropriate award of attorneys’ fees, we find that the trial court applied an incorrect
standard of law in determining the amount of attorneys’ fees that should be awarded.
When the trial court misapplies the law, a de novo review by the court of appeal is
appropriate and necessary.
We have considered the Rivet factors based on the record before us, and agree
with the trial court’s assessment that the attorneys’ fees sought for this matter are
excessive. We recognize that Village was fully successful in the litigation for which
it seeks attorneys’ fees by obtaining the full amount sought in the petition, the
importance of the litigation to Village, and that Village attempted to resolve its claim
without litigation to no avail.
While Louisiana courts have found that attorneys’ fees in excess of the amount
recovered are not per se unreasonable, the amount at issue is a consideration in the
Rivet analysis, and should be taken into consideration in evaluating the
reasonableness of attorneys’ fees sought, particularly in this type of situation where
the petition sought recovery of a specific amount and counsel was aware of that in
working on the case. In addition, based on the record of the subject lawsuit, and
considering that it entailed the legal interpretation of a single contract provision, we
do not believe the extent and character of the work-performed or the legal knowledge
and skill required involved complex issues or significant expertise.
Kimble specifically challenged the attorneys’ fees for the summary judgment
motion because they included one-hundred forty (140) hours billed for preparing the
summary judgment motion, amounting to approximately $35,000. We agree that
the $35,000 in attorneys’ fees for the summary judgment motion is unreasonable.
There are eleven (11) days of eight (8) hour days and other shorter periods of time
billed for drafting the motion for summary judgment, which involved the legal
interpretation of a single contract provision, and totaled less than twenty pages (not
19-CA-238 6
including the exhibits). Further, although discovery was conducted, resolution of
the litigation did not require a fact-intensive analysis. We find that sixty (60) hours,
which amounts to seven and one-half (7 1/2) days of time, is a reasonable amount of
time for preparation of the summary judgment motion in this case. Accordingly, we
find that the attorneys’ fees sought for the summary judgment motion should be
reduced to $15,000. As a result, the $64,316.09 in attorneys’ fees is reduced to
$44,316.09.
With regard to the responsibility incurred and the diligence and skill of
counsel, we acknowledge that general legal and contractual knowledge was
necessary, as well as a certain amount of time and effort. It appears that it was a
contentious proceeding between the parties, which tends to ultimately require
attorneys to expend more time in litigation. The record shows that Kimble ignored
Village’s attempt to resolve this matter without litigation and initially responded to
Village’s petition for damages and accounting and reimbursement with a peremptory
exception of no right of action. Village’s counsel had to draft an opposition and
make a court appearance to defend that exception. In discovery, Kimble produced
and Village’s counsel reviewed almost 2,000 pages of responsive production. In
preparation for depositions, Village’s counsel compiled exhibits and prepared
outlines for Kimble’s two (2) corporate representatives, took these depositions, and
reviewed the deposition transcripts for preparation of the summary judgment
motion. Village’s counsel also researched and drafted the summary judgment
motion, reviewed Kimble’s opposition to that motion, prepared Village’s reply brief
to that opposition, and finally appeared for the hearings on the summary judgment
motion. Thus, over the course of approximately two years, the litigation involved
one exception, one summary judgment motion, some discovery requests and
responses, two depositions and court appearances for the exception and the summary
judgment motion hearings.
19-CA-238 7
Having considered the Rivet factors as articulated above, we find that
$44,316.09 is a reasonable amount of attorneys’ fees and costs for the legal work
involved in this matter.
Conclusion
For the reasons stated above, we amend the trial court’s judgment awarding
$24,173.64 in attorneys’ fees; and render judgment awarding Village $44,316.09 in
attorneys’ fees and costs.
AMENDED; AFFIRMED AS AMENDED
19-CA-238 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 30, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-238
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE EMILE R. ST. PIERRE (DISTRICT JUDGE)
LEONARD A. DAVIS (APPELLANT) DAVID C. FLESHMAN (APPELLEE) CHARLES M. KING (APPELLANT)
DAVID B. PHELPS (APPELLEE)
MAILED
ROSS A. DOOLEY (APPELLEE)
ATTORNEY AT LAW
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