Concrete v. Concrete Works of Colo. Inc.

• Decision Date: 02 May 2011
• Docket Number: No. S–10–0036.,S–10–0036.
• Citation: 2011 WY 74,252 P.3d 445
• Parties: JOE'S CONCRETE AND LUMBER, INC., Enercrest, Inc., and Enercrest Products, Inc., Wyoming Corporations, Appellants (Plaintiffs),v.CONCRETE WORKS OF COLORADO, INC., a Colorado Corporation, and Hartford Casualty Insurance Company, an Indiana Company, doing business as a Foreign Insurance Company, Appellees (Defendants).
• Court: Wyoming Supreme Court

252 P.3d 445

2011 WY 74

JOE'S CONCRETE AND LUMBER, INC., Enercrest, Inc., and Enercrest Products, Inc., Wyoming Corporations, Appellants (Plaintiffs),

v.CONCRETE WORKS OF COLORADO, INC., a Colorado Corporation, and Hartford Casualty Insurance Company, an Indiana Company, doing business as a Foreign Insurance Company, Appellees (Defendants).

No. S–10–0036.

Supreme Court of Wyoming.

May 2, 2011.

Representing Appellants: Andrea L. Richard of The Richard Law Firm, P.C., Jackson, Wyoming.Representing Appellees: William H. Twichell, Pinedale, Wyoming.Before KITE, C.J.,^* and HILL, VOIGT ^**, BURKE, JJ., and SKAR, D.J.KITE, Chief Justice.

[¶ 1] After a jury found that Concrete Works of Colorado, Inc. (CWC) breached its contract with Joe's Concrete and Lumber, Inc. (Joe's Concrete), Joe's Concrete presented evidence documenting its claim for attorney fees. The district court declined to consider the documentation on the ground that it was not presented at trial, concluded the evidence presented at trial did not support an attorney fees award and denied the attorney fees claim in its entirety. On appeal, Joe's Concrete contends the district court erred in failing to consider the evidence.¹ We reverse and remand.

ISSUE

[¶ 2] The issue for our determination is whether the district court properly denied attorney fees.

FACTS

[¶ 3] In 2006, the town of Marbleton, Wyoming awarded CWC a contract to perform work on a curb and gutter infrastructure project. Prior to receiving the award, CWC posted a performance bond which was issued by Hartford Casualty Insurance Company (Hartford). After being awarded the project, CWC contacted Joe's Concrete and requested concrete pricing, which Joe's Concrete provided.

[¶ 4] Between September and early October of 2006, Joe's Concrete delivered approximately fifty mixer truck loads of concrete to CWC. With each delivery, Joe's Concrete provided invoices which contained the following provision:

[P]urchaser also notes that all collection costs and attorney fees will be charged to this account if forced collection on this account is necessary.

[¶ 5] In January of 2007, Joe's Concrete filed a complaint against CWC alleging claims for breach of contract, breach of the covenant of good faith and fair dealing in tort and contract, unjust enrichment and conversion. ² Joe's Concrete also sought punitive damages and attorney fees. Prior to trial, the district court dismissed the tort claim for breach of good faith and fair dealing and the punitive damages claim.

[¶ 6] Trial was convened on May 18, 2009. On May 19, after Joe's Concrete had informed the jury in opening statement that it was seeking attorney fees and submitted proposed jury instructions on the issue of attorney fees, the district court suggested that counsel take a look at the discussion in Gose v. Hess, 822 P.2d 846 (Wyo.1991) concerning “attorney's fees and how those are handled.”

[¶ 7] On May 20, Joe's Concrete presented one of its employees to testify concerning its attorney fees. After some preliminary questioning, CWC asked to approach the bench. The district court excused the jury and a discussion occurred with counsel that was not transcribed. The district court then stated on the record:

We're here without the presence of the jury to take up the testimony or offer of proof, however you wish to do it, [counsel for Joe's Concrete], of [the witness] on the issue of attorneys' fees. We will proceed however you want.

[¶ 8] Counsel for Joe's Concrete proceeded to ask the witness generally about the attorney fees charged in the case. The witness broke the fees into four categories: pre-litigation activities, including demand letters and initial discovery; discovery, including depositions and motions; trial, including motions, trial preparation, the trial itself, travel and expenses; and post-trial fees. The witness also testified generally that he thought the fees were reasonable. When counsel indicated she had no more questions, the district court inquired whether she understood the statutory factors it would consider in awarding fees and suggested she and the witness address the factors, “because you only get one shot at this to prove up fees.” With the court's encouragement, counsel established through the witness's testimony that in his opinion the hourly fee of $225 to $250 charged to Joe's Concrete was reasonable given the skill exhibited by counsel. The trial continued and the jury found that CWC breached the contract and the covenant of good faith and fair dealing and awarded Joe's Concrete damages of $232,367.25.

[¶ 9] In June of 2009, in accordance with the district court's directive, the parties submitted proposed findings of fact and conclusions of law on the attorney fees issue. In addition to summarizing the trial testimony concerning attorney fees, Joe's Concrete attached detailed invoices that were not introduced as exhibits during trial, setting forth actual fees and costs incurred and the actual hours worked. Joe's Concrete explained that the invoices for certain pretrial activities and the trial itself were not available at the time of trial. CWC filed an objection to the presentation of evidence of fees after the close of the evidence and conclusion of trial. Joe's Concrete responded, citing W.R.C.P. 54 and arguing that the rule expressly authorizes a party to submit an attorney fees application and invoices after trial.

[¶ 10] In August of 2009, the district court issued a decision letter and order on attorney fees. The district court stated that in addition to the witness testimony presented during the trial, Joe's Concrete submitted “ex parte documents which were not items of evidence admitted at the trial.” The court stated it “does not, and cannot, rely in any way upon these documents” and ruled that the documents were inadmissible. The court then outlined the testimony presented at trial in support of the attorney fees claim, noted that no billing statements were offered into evidence and concluded that Joe's Concrete failed to meet its burden of proving its fees. The decision states:

The Court was not provided with any itemized billings during the presentation of testimony and evidence ... so as to determine “whether the fee charged represents the product of reasonable hours times a reasonable rate.” ... The testimony of [the witness] revealed that the only billing statements which had been reviewed by him for the period of October 31, 2006, through February 28, 2009, contained “costs, attorneys' fees, third-party fees, electronic research costs, investigator fees, and court reporter fees” in unspecified sums. He did not testify as to the attorneys' fees charged, and the billings were not admitted into evidence.

The district court denied the attorney fees claim in its entirety.

[¶ 11] In October of 2009, the district court entered its judgment. Fourteen days later, Joe's Concrete filed an application for attorney fees and costs pursuant to W.R.C.P. 54. The district court did not rule on the motion. Joe's Concrete timely appealed from the judgment.

STANDARD OF REVIEW

[¶ 12] We review a district court's denial of attorney fees for abuse of discretion. Ultra Resources, Inc. v. Hartman, 2010 WY 36, ¶ 149, 226 P.3d 889, 935 (Wyo.2010). A court abuses its discretion only when it acts in a manner which exceeds the bounds of reason under the circumstances. Id. The burden is placed upon the party who is attacking the district court's ruling to establish an abuse of discretion, and the ultimate issue is whether the court could reasonably conclude as it did. Id.

DISCUSSION

[¶ 13] Joe's Concrete asserts it was entitled to an attorney fees award under the plain terms of the contracts, its Rule 54 motion was timely and the district court erred in not considering the evidence it submitted with its motion. Joe's Concrete further contends the district court improperly disregarded the procedures set forth in Rule 54 and denied it a full and fair opportunity to prove its attorney fees. It asserts it could not have presented the final fees during trial because work was still...