427 S.W.3d 843
Mo. Ct. App.2014Background
- Desu and Lewis entered a real estate contract on May 23, 2006; Desu paid $8,000 earnest money and a closing date was set for July 20, 2006.
- Lewis failed to close, failed to transfer title, and did not return the $8,000 earnest money.
- Desu sued for breach of contract and misrepresentations, seeking earnest money, his fees, and $40,500 in additional damages.
- Pre-trial activity included Lewis's counterclaim for breach; Desu dismissed misrepresentation claim and dismissed Lewis's counterclaim; bench trial occurred March 6, 2013, resulting in a judgment for Desu but with no attorney’s fees awarded.
- Contract provision states that in litigation, the prevailing party shall recover reasonable attorney’s fees and costs; the trial court’s intended judgment reflected $8,450 but did not award attorney’s fees.
- Judgment affirmed in part, reversed in part, and remanded to determine reasonable attorney’s fees consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract requires awarding attorney’s fees to the prevailing party. | Desu is entitled to fees under the contract. | Lewis contends there should be no fee award. | Yes; prevailing-party fees must be awarded. |
| Whether Desu qualifies as prevailing party under the contract. | Desu prevailed on the main issue (earnest money). | Not specified; defendant disputes fee entitlement. | Desu is prevailing party for purposes of fee entitlement. |
| Scope of recoverable attorney’s fees (earnest-money/equipment vs. remaining damages). | Fees related to recovery of earnest money and equipment are recoverable. | Fees tied to other damages should not be awarded. | Fees may be awarded for the portion of the action concerning earnest money and equipment; remand for calculation of reasonable fees. |
Key Cases Cited
- Schnucks Carrollton Corp. v. Bridgeton Health & Fitness, Inc., 884 S.W.2d 783 (Mo.App. E.D.1994) (defines prevailing party entitlement to contract-based attorney’s fees)
- Ken Cucchi Const., Inc. v. O’Keefe, 973 S.W.2d 520 (Mo.App. E.D.1998) (prevailing-party concept for fee awards under contract)
- Lorenzini v. Short, 312 S.W.3d 467 (Mo.App. E.D.2010) (de novo review of authority to award attorney’s fees)
- Ohm Properties, LLC v. Centres Care, Inc., 302 S.W.3d 170 (Mo.App. E.D.2009) (attorney’s fees standard; trial court is expert on fees)