790 F. Supp. 2d 1307
D. Kan.2011Background
- Consolidated actions arise from KPG terminating a land-sale contract with HV for a Cherokee County casino site.
- HV and Penn National separately sued/defended related contract claims; claims consolidated Oct. 31, 2008.
- On July 23, 2010, court granted KPG and Penn National summary judgment and entered judgment against HV; costs awarded.
- HV appealed to Tenth Circuit on Aug. 17, 2010.
- KPG and Penn National moved for attorneys' fees and expenses totaling about $1.5M in fees and $208K in expenses, plus additional fees/expenses for pleadings related to the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prevailing party is entitled to attorney fees under the contract. | KPG/ Penn National prevail under contract; payor of fees is irrelevant. | HV argues Penn National lacks contractual right; KPG is a shell; fees should be denied. | Yes; KPG entitled to fees as prevailing party regardless of who paid. |
| Whether the reasonableness of fees is governed by Lake/Wittig/KRPC factors and who bears the burden. | Burden on HV? No; Lake/Wittig support that requester bears burden. | KPG misreads; burden on fee applicant to prove reasonableness under KRPC 1.5(a). | Burden on requester; apply KRPC 1.5(a) factors to determine reasonableness. |
| What is the appropriate hours and rates to award as reasonable fees and expenses. | Significant hours/time, complex issues justify high rates. | Overbilling and duplication; rate too high; Topeka rates should apply. | Reduce hours by 25% for overlawyering; apply blended rate $225; total fees $765,058.50 plus expenses. |
| Whether to award fees on fees and related motion expenses. | Fees for preparing fee application are recoverable under contract. | Fee-on-fees should be scrutinized and may be excessive. | Award fees on fees; apply 20% reduction; total $26,964.00. |
| What is the final allowed expenses amount and any exclusions. | Expenses reasonable per contract; travel, deposition, expert fees allowed. | Certain costs (mediator, some expert fees, travel for motion prep) should be disallowed. | Award expenses of $207,652.27 after excluding mediator fee and motion-travel travel. |
Key Cases Cited
- Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., 948 F.2d 1518 (10th Cir.1991) (procedural/ministerial fee rulings in diversity actions)
- King Resources Co. v. Phoenix Resources Co., 651 F.2d 1349 (10th Cir.1981) ( governs attorney's fees when authorized by contract or statute)
- Terra Venture, Inc. v. JDN Real Estate-Overland Park, L.P., 242 F.R.D. 600 (D.Kan.2007) (proceedings recovery of attorney's fees under contract even if paid by another party)
- United States ex rel. C.J.C., Inc. v. Western States Mech. Contractors, Inc., 834 F.2d 1533 (10th Cir.1987) (contractual fee provisions and reasonableness standards under Miller Act context)
- Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243 (10th Cir.1998) (reasonable attorney's fees when awarded by court; standard for billing)