Grant Family Farms v. Liqua-Dry

• Decision Date: 27 September 2012
• Docket Number: Civil No. 2:10-CV-00551-BSJ
• Parties: GRANT FAMILY FARMS, Plaintiff, v. LIQUA-DRY a/k/a LIQUADRY, DEEANNA PETERSON and ELEND LEBARON, Defendants; LIQUA-DRY, Counterclaimant, v. GRANT FAMILY FARMS, Counterclaim Defendant.
• Court: U.S. District Court — District of Utah

GRANT FAMILY FARMS, Plaintiff,

v.LIQUA-DRY a/k/a LIQUADRY, DEEANNA PETERSONand ELEND LEBARON, Defendants;

LIQUA-DRY, Counterclaimant,

v.GRANT FAMILY FARMS, Counterclaim Defendant.

Civil No. 2:10-CV-00551-BSJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Dated: September 27, 2012

MEMORANDUM OPINION

& ORDER RE: ATTORNEY'S FEES

AND COSTS

(Fed. R. Civ. P. 54(d))

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises out of a contract for the sale of beets. In 2009, plaintiff furnished four shipments of beets to the defendants.¹ The defendants only paid for two,² alleging that the beetswere dirty and unusable.³ Of the four shipments, three are a result of a purchase order created and signed by defendants, and sent to plaintiff on either August 11 or 12, 2009.⁴ The purchase order specified that the beets would be due in late November, and that defendants would retrieve the beets from Colorado no later than December 10, 2009.⁵ Bills of lading indicate that the beets identified to invoices 29072 and 26851 were retrieved in Wellington, Colorado on December 2 and 8, 2009.⁶ In response, plaintiff prepared invoices labeled 29072 and 26851, and dated December 2 and 8, 2009.⁷ Each of these invoices contained the following language immediately below the price total: "In the event collection action becomes necessary, buyer agrees to pay all costs of collection, including attorney fees."⁸

On August 26, 2011, defendants filed a motion for partial summary judgment on the issueof attorney's fees.⁹ On October 10, 2011, plaintiff responded by filing a cross-motion for partial summary judgment.¹⁰ At a hearing on January 27, 2012, the court indicated that in the event that plaintiff prevailed at trial, plaintiff would be entitled to an award of attorney's fees.¹¹

On February 15, 2012—exactly twenty months from the date that plaintiff filed the initial complaint¹² —the court signed a consent judgment and order,¹³ wherein the parties agreed that defendants are indebted to plaintiff on a joint and several basis, in the principal amount of $26,416.14, "plus interest at the agreed contract rate of 1.5% per month, from December 2, 2009 through the date the final judgment in this matter is fully satisfied."¹⁴ Defendants also agreed to the entry of final judgment with prejudice in favor of plaintiff on all alleged counterclaims, and withdrew all their alleged affirmative defenses.¹⁵ The consent judgment also provided for an award of plaintiff's attorney's fees, stating that

Defendants and Plaintiff attempted to determine the proper amount of Plaintiff's attorney's fees and interest but were unable to agree on a figure. Thus, the Defendants agreed to entry a judgment for all of Plaintiff's claims against theDefendants and the parties further agreed to reserve for the Court's determination the proper amount of the Plaintiff's attorney's fees and costs.¹⁶

Plaintiff subsequently filed a motion for attorney's fees and costs¹⁷ along with a memorandum in support of the motion.¹⁸ In that motion, plaintiff requested that the court award $79,341.50 in attorney's fees, and $13,203.37 in costs, for a total of $92,544.87.¹⁹ At the same time, plaintiff also requested an additional $6,975.00, anticipating fees and costs to prepare a reply brief ($2,555.00) and attend a hearing ($4,420.00).²⁰ Defendants filed a memorandum in opposition to plaintiff's motion on March 12, 2012.²¹ Plaintiff filed a reply in support of its motion on March 19, 2012.²²

On April 12, 2012, plaintiff's motion for attorneys' fees came on for hearing.²³ Michael J. Keaton and John T. Anderson appeared on behalf of plaintiff, and Richard N. Barnes appearedon behalf of defendants. The court heard the testimony of Mr. Keaton and the arguments of counsel and took the matter under advisement.²⁴

After the hearing, plaintiff's counsel submitted a supplemental brief and supporting affidavit, requesting that the previously estimated $6,975.00 in attorneys fees and costs (for preparing the reply brief and attending the hearing) be increased to reflect actual fees and costs of $14,222.11—representing actual fees of $6,862.50 for March 2012, $4,380.00 for April 2012, and $2,979.61 in actual costs.²⁵ When combined with plaintiff's previous application for $92,544.87, plaintiff is now requesting a total amount of $106,766.98 in fees and costs, stating that the same "are reasonable and necessary to successfully uphold the Plaintiff's contract rights and successfully defend against all of the Defendants' counterclaims in this matter."²⁶

ANALYSIS AND FINDINGS

Attorney's Fees Awards

"An award of attorney's fees must be reasonable."²⁷ This court must determine "in light of all the circumstances" whether in fact the fees and costs that plaintiff seeks are reasonable, "based upon the time and effort reasonably expended by the prevailing party's attorney" in pursuing the plaintiff's contractual claim and defending against the Defendants' counterclaimspleaded in this action.²⁸

The Utah Supreme Court has explained that when

the parties have agreed by contract to the payment of attorney fees, the court may award reasonable fees in accordance with the terms of the parties' agreement. The amount to be awarded is largely within the sound discretion of the trial court, but such factors should be considered as the relationship of the fee to the amount recovered, the novelty and difficulty of the issues involved, the overall result achieved and the necessity of initiating a lawsuit to vindicate rights under the contract.²⁹

In Dixie State Bank v. Bracken,³⁰ the Utah Supreme Court provided four questions that a court should answer when determining a reasonable attorney's fee:

1. What legal work was actually performed?

2. How much of the work performed was reasonably necessary to adequately prosecute the matter?

3. Is the attorney's billing rate consistent with the rates customarily charged in the locality for similar services?

4. Are there circumstances which require consideration of additional factors, including those listed in the Code of Professional Responsibility?

It is important to note that with this analysis, what an attorney bills or the number of hours spent on a case is not determinative. See Cabrera v. Cottrell, 694 P.2d at 624-25. The appropriateness of the work actually performed and of

the attorney's billing rate is evaluated before a reasonable fee is set.³¹ In Hartman v. Freedman,³² the Colorado Supreme Court similarly observed that "[i]n awarding attorney's fees, the trial court may consider, among other factors, the amount in controversy, the length of time required to represent the client effectively, the complexity of the case, the value of the legal services to the client, and the usage in the legal community concerning fees in similarcases. . . . However, no one of these factors is conclusive."³³ More recently, the Colorado Court of Appeals echoed the language of Hartman:

In awarding attorney fees, a trial court may consider several factors, including (1) the amount in controversy; (2) the time required to effectively represent the client; (3) the complexity of the case; (4) the value of the legal services to the client; and (5) the customary practice in the legal community regarding fees in similar cases.³⁴

Generally, "[a] party who requests an award of attorney fees has the burden of presenting evidence sufficient to support an award."³⁵ Except in "the most simple cases, the evidence should include the hours spent on the case, the hourly rate or rates charged for those hours, and usual and customary rates for such work. The evidence may be supplied by affidavit."³⁶ As the Colorado Supreme Court has explained,

The party requesting an award of attorney fees bears the burden of proving by a preponderance of the evidence its entitlement to such an award. Kinsey v. Preeson, 746 P.2d 542, 551-52 (Colo. 1987) (citing Board of County Comm'rs v. Auslaender, 745 P.2d 999, 1001-02 (Colo.1987)); . . . Spensieri v. Farmers Alliance Mutual Ins. Co., 804 P.2d 268, 271 (Colo. App.1990) ("If the attorney provides a reason and rational basis for the work done, he or she should be compensated accordingly. . . .") . . . Counsel is not required "to record in great detail how each minute of his time was expended. But at least counsel shouldidentify the general subject matter of his time expenditures."³⁷

If a party fails to provide an adequate basis for the award of attorney fees, the court may not be able to assess important factors in determining the reasonableness of the fee, such as the reasonableness of the number of hours spent on the case or the fee customarily charged in the area for similar services.³⁸ "If the attorney provides a reason and rational basis for the work done, he or she should be compensated accordingly, and, of course if he or she should fail to establish such a basis, limiting the award of attorney fees is appropriate."³⁹ As defendants' counsel suggests, "it 'is not for the court to justify each dollar or hour deducted from the total submitted by counsel . . . . [,but] counsel's burden to prove and establish the reasonableness of each dollar, each hour, above zero.'" Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 725 (10th Cir. 1093) (alterations in original) (quoting Mares v. Credit Bureau, 801 F.2d 1197, 1210 (10th Cir. 1986)).

Grant Family Farms' Fee Request

To show that its application for attorney's fees is reasonable, plaintiff has provided copies of invoices containing billing entries from April 2010 to April 2012,⁴⁰ together with affidavitsfrom Michael J. Keaton⁴¹ and John Anderson.⁴²

Mr. Keaton averred that he believed the time that his firm spent on this case "to have been reasonably incurred for the tasks performed and necessary based on the actions of the Defendants and the Plaintiff's obligations to respond thereto."⁴³ Mr. Keaton further averred that hourly rates for his firm's personnel "ranged from $225.00 per...