Village Shopping Center Partnership Versus Kimble Development, LLC and Michael Kimble

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
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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
8440 JEFFERSON HIGHWAY
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