Summary
compiling Missouri cases
Summary of this case from Restored Images Consulting, LLC v. Dr. Vinyl & Assocs., Ltd.Opinion
No. 109,171.
2013-09-13
MARTIN UNDERGROUND LLC, Appellant, v. TRINITY EXCAVATING & CONSTRUCTION, INC., Appellee.
Appeal from Wyandotte District Court; Daniel A. Duncan, Judge. Michael E. Crowley, of Stinson Morrison Hecker LLP, of Kansas City, Missouri, for appellant. Philip D. Albrecht, of Moore & Brower, P.C., of Kansas City, Missouri, for appellee.
Appeal from Wyandotte District Court; Daniel A. Duncan, Judge.
Michael E. Crowley, of Stinson Morrison Hecker LLP, of Kansas City, Missouri, for appellant. Philip D. Albrecht, of Moore & Brower, P.C., of Kansas City, Missouri, for appellee.
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This appeal raises questions of whether Missouri or Kansas law applies when we are asked to determine if there was a prevailing party entitled to attorney fees, costs, and expenses when a subcontractor recovered a money judgment in its breach of contract lawsuit against its contractor.
Martin Underground, LLC (Martin), sued Trinity Excavating & Construction, Inc. (Trinity), seeking money it claimed it was owed for services performed under a subcontract agreement. A jury awarded Martin breach of contract damages of $32,737.28, but offset the amount by $7,949.28 based on its finding that Martin had failed to repair defective work or failed to complete its work on the project. Accordingly, the district court entered judgment in Martin's favor in the amount of $24,788 plus costs.
Martin and Trinity subsequently filed competing motions for attorney fees. Trinity invoked, for the first time in the proceedings, the choice-of-law provision in the subcontract that stated Missouri law should control. Martin disagreed and contended Kansas law applied.
The district court found Missouri law applied, but under either Missouri or Kansas law, neither Martin nor Trinity was a prevailing party, so neither was entitled to attorney fees. From the ruling denying its motion, Martin has appealed.
Factual and Procedural Background
In January 2011, Martin and Trinity entered into a subcontract agreement under which Martin was to provide construction services on a sewer repair project Trinity had in Pocahontas, Iowa.
After Trinity refused to pay Martin for certain services, Martin sued Trinity in Wyandotte County, Kansas, in October 2011, alleging claims under both breach of contract and a theory of quantum meruit. Trinity answered, averring numerous affirmative defenses, including that it had overpaid Martin and that Martin had defaulted on the contract by performing defective work which it refused to remediate. Trinity, as Martin also had, requested attorney fees, costs, and expenses.
In July 2012, Trinity filed a summary judgment motion on Martin's quantum meruit claim, asserting that breach of contract and quantum meruit are mutually exclusive legal concepts under Kansas law and that quantum meruit is only applicable where there is no valid written contract. Therefore, because there was a valid written contract between Trinity and Martin, Trinity asserted that the district court should grant summary judgment in Trinity's favor on the quantum meruit claim. Martin replied, admitting that under Kansas law, it could not recover under both theories but believed it could present both at trial. The district court denied the motion.
The jury trial was held in September 2012. Both parties presented evidence and testimony about the specifics of the subcontract and the work both Martin and Trinity undertook on the project. During the jury instruction conference where Kansas PIK instructions were utilized, the trial judge revisited the breach of contract/quantum meruit claims and ruled Martin was required to elect one theory. Martin elected to pursue its claim based on breach of contract.
As we earlier stated, the jury found Trinity had breached its contract with Martin by failing to pay Martin in full for the work performed on the contract and awarded Martin damages of $32,732.28. The jury further found Martin had failed to repair defective work, failed to complete its work on the project, and reduced the damages awarded to Martin by $7,949.28 resulting in a money judgment being entered for Martin and against Trinity in the amount of $24,788 plus costs.
Shortly after trial, Trinity filed a motion for attorney fees which, along with a comparable motion later filed by Martin, becomes the basis for this appeal.
The subcontract contained the following clause relating to attorney fees, costs, and expenses:
“8.3 ATTORNEY'S FEES. Should either party employ an attorney to institute suit to enforce any of the provisions hereof, to protect its interest in any matter arising under this Subcontract, or to collect damages for the breach of the Subcontract, the prevailing party shall be entitled to recover reasonable attorney's fees, cost charges, and expenses expended or incurred therein.”
In its motion, Trinity also noted a clause in the subcontract that read in part: “8.1 LAW AND EFFECT. This Subcontract shall be governed by the law of the State of Missouri.” Trinity argued this clause required the attorney fee issue be resolved under Missouri law, but because the choice-of-law issue had not arisen earlier in the case Trinity discussed both Missouri and Kansas law in its motion. Trinity argued that it was the prevailing party in the lawsuit or, in the alternative, that neither party prevailed. Therefore, Trinity asserted the district court should either award Trinity $46,382.23 in attorney fees and expenses as the prevailing party or decline to award attorney fees to either party.
A few days later, Martin filed a cross-motion for attorney fees and costs, arguing that as the prevailing party, it was entitled under the subcontract to recover its attorney fees and costs in the amount of $35,619.43. Trinity and Martin both filed responses. As to the choice-of-law issue, Martin disagreed with Trinity's assertion that Missouri law controlled; Martin argued that the parties had elected to utilize Kansas law in all proceedings and submitted the case to the jury under Kansas law. Martin further argued it was the prevailing party under both Kansas and Missouri law.
The oral arguments in the hearing on the attorney fee motions primarily mirrored the allegations in the motions. Martin pointed to the jury instructions as being based on Kansas law which resulted in the law of the case being that the motions for attorney fees must be controlled by Kansas law. Trinity continued its argument that it had not waived the choice-of-law provision, contending the question of which law would control simply had not arisen previously in the lawsuit.
The district court ruled from the bench, noting the change in the law from the American system to the requirement now of consideration of the contract clauses and their enforcement. The court says: “Contract clause said prevailing party. If you take the demands forty-eight and zero, it's a split. If you take the demand the offer before trial and the demand right before trial which was seventeen five and thirty two five, it's a split. Neither side prevailed.” When asked if he was making a finding under Missouri or Kansas law, the district judge replied that it was the finding under the law of both states.
Martin subsequently filed a motion for reconsideration, Trinity responded. The district court denied the motion. Martin has timely appealed.
Did the district court err in finding Martin was not the prevailing party and therefore entitled to attorney fees, costs, and expenses?
In this appeal, Martin contends it is the prevailing party and entitled to attorney fees, costs, and expenses under both Kansas or Missouri law.
Trinity makes the exact opposite argument. Martin is not the prevailing party and is not entitled to attorney fees, costs, and expenses under both Kansas or Missouri law.
Thus, although it is Martin's position that Kansas law must be applied and Trinity's position that Missouri law applies, we do not need to resolve this choice-of-law issue if we totally agree with the above contention of either party. Further, our Supreme Court has stated that “[n]o choice of law question is presented when the laws of the implicated states do not differ on substantive issues. [Citation omitted.]” State v. Francis, 282 Kan. 120, 134, 145 P.3d 48 (2006); see also AT & SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 732, 71 P.3d 1097 (2003) (same); Brenner v. Oppenheimer & Co., 273 Kan. 525, 535, 44 P.3d 364 (2002) (“ ‘[W]here there is no difference between the laws of the forum state and those of the foreign jurisdiction, there is a “false conflict” and the court need not decide the choice of law issue.’ [Citation omitted.]”).
We will thus turn to the ultimate question—did the district court correctly apply the law?
In both Kansas and Missouri, a court may not award attorney fees absent statutory authority or an agreement of the parties. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 P.3d 1120 (2013); Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425, 431 (Mo.2013).
Whether a district court has the authority to award attorney fees and costs is a question of law over which an appellate court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1200, 221 P.3d 1130 (2009). The party requesting fees and costs bears the burden of establishing entitlement to such an award. Midwest Asphalt Coating, Inc. v. Chelsea Plaza Homes, 45 Kan.App.2d 119, Syl. ¶ 3, 243 P.3d 1106 (2010), rev. denied 292 Kan. 965 (2011).
Both Trinity and Martin agree their contract contained paragraph 8.3 which we have previously fully set forth and provides if a lawsuit is instituted, “the prevailing party shall be entitled to recover reasonable attorney fees, cost charges, and expenses expended or incurred therein.” The legal effect of a written instrument is a question of law. It may be construed and its legal effect determined by the appellate court regardless of the construction made by the district court. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Before considering the laws of Kansas and Missouri, we briefly review the district court's decision. In explaining the court's finding that there was no prevailing party, the court compared various monetary amounts implicated throughout the case and found that because the final judgment was approximately halfway between (1) the original demand and zero and (2) the final offers of each party in failed settlement negotiations, there was no prevailing party. The court further stated this was the result under either Kansas or Missouri law but did not cite any legal authority to support the use of these calculations to determine a prevailing party under either Kansas or Missouri law for purposes of awarding attorney fees.
Kansas law
Martin argues that under Kansas law, it was the prevailing party in the district court citing Neighbors Construction Co. v. Woodland Park at Soldier Creek, 48 Kan.App.2d 33, 58, 284 P.3d 1057 (2012), which approved a district court's definition of a prevailing party as the party which is “ ‘ “substantially successful in a cause of action, although the judgment awarded ... may have been reduced by an amount awarded [to the other party] on a counterclaim or appeal.” ‘ “ Martin interprets this language which cites Szoboszlay v. Glessner, 233 Kan. 475, 482, 664 P.2d 1327 (1983), for support, to mean that “[i]f a party seeking relief recovers even a single dollar after accounting for any offsets or reductions in its recovery, then it has prevailed.”
Trinity, on the other hand, argues Neighbors Construction Co. and Szoboszlay are distinguishable from the instant case and points instead to Midwest Asphalt Coating to support its assertion that Martin was not successful enough to be the prevailing party. Trinity contends that Martin initially pled both a breach of contract claim and a quantum meruit claim but pursued only breach of contract at trial and because Martin recovered only half the damages sought in its original petition, Martin did not prevail.
The most instructive of the Kansas cases is Szoboszlay v. Glessner where Syl. ¶ 6 defines a “successful” party in this manner: “A plaintiff is the successful party where he is substantially successful in his cause of action, although the judgment awarded him may have been reduced by an amount awarded the defendant on a counterclaim or on appeal.”
In Szoboszlay, Bernd Szoboszlay brought a claim under the Small Claims Procedure Act to compel his landlord, Esta Glessner, to return his $150 security deposit. The district magistrate judge entered a $150 judgment for Szoboszlay. Glessner appealed to the district court and counterclaimed for damages of $1,140. In his answer to the counterclaim, among other things, Szoboszlay requested reasonable attorney fees. The district court affirmed but reduced the judgment to $124.02 in order to account for rent Szoboszlay owed Glessner. The district court did not award Szoboszlay attorney fees; Szoboszlay appealed.
Before our Supreme Court, Szoboszlay argued that the district court erred in failing to award him attorney fees as provided by K.S .A.1982 Supp. 61–2709(a), which allowed awarding reasonable attorney fees to a party who was successful on an appeal under that subsection. 233 Kan. at 475, 481. Glessner contended that Szoboszlay was not “successful” in the appeal to the district court because the district court reduced the judgment to $124.02 due to the owed rent. Regarding the meaning of “successful party,” the Szoboszlay court quoted from Schuh v. Educational Reading Services of Kansas, 6 Kan.App.2d 100, 101, 626 P.2d 1219 (1981), which stated:
“The term “successful party” has been held to be synonymous with “prevailing party.” [Citation omitted.] The term “prevailing party” is defined in Biack's Law Dictionary 1069 (5th ed.1979) as:
“ “The party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered. [Citation omitted.] The party ultimately prevailing when the matter is finally set at rest.
“ ‘With respect to the specific question of attorney fees, it has been stated a prevailing party is the person who has an affirmative judgment rendered in his favor at the conclusion of the entire case.’ “ 233 Kan. at 482.
The Szoboszlay court further addressed the issue of setoffs and counterclaims, stating that a party “is entitled to costs if he has a judgment in excess of the setoff or counterclaim allowed,” even if the other party prevailed to some extent. 233 Kan. at 483. The court concluded that Szoboszlay was “without doubt” the successful party, noting that the district court affirmed Szoboszlay's judgment from the magistrate judge, although it was reduced for additional rent owed. 233 Kan. at 484.
Trinity's attempt to minimize the persuasive authority of Szoboszlay is without merit. Trinity says it “prevailed not only on the submission of the quantum meruit issue, but also on its counterclaim—two out of the three claims at issue.” However, the fact that the district court required Martin to elect between a quantum meruit theory and a breach-of-contract theory prior to jury submission does not equate to Trinity “prevailing”; the district judge made clear at the hearing on the motion for attorney fees that “Trinity wasn't successful in precluding the quantum meruit claim. [Martin] elected not to take it to trial.” Further, the fact Trinity recovered a judgment on its counterclaim is not persuasive, since the Szoboszlay court explicitly stated that a party would still be considered the successful or prevailing party even if the other party prevailed to some extent on a counterclaim or received a setoff, as happened in our case. See 233 Kan. at 483.
Neighbors Construction Co. v. Woodland Park at Soldier Creek involved a contract for construction services between the parties. Eventually, Neighbors sought arbitration over a dispute regarding construction payments. The arbitrator found that Woodland Park materially breached the contract by nonpayment, which excused Neighbors' further performance, and Neighbors was entitled to a monetary recovery because, despite the breach, it completed the project. The arbitrator also awarded Neighbors attorney fees and costs as a part of the $1,277,701.31 award. On appeal to our court, Woodland Park, among other issues, contended the attorney fees and costs award was improper because Neighbors was not the prevailing party under the Kansas Fairness in Private Construction Contract Act (KFPCCA), K.S.A. 16–1801 et seq.
Our court found that Neighbors was the prevailing party in spite of Woodland Park having received a deduction from the final arbitration award for costs involved with correction or completion of some of Neighbors' work. 48 Kan.App.2d at 58. Neighbors was clearly the “prevailing party” in the case. Trinity's attempt to distinguish Neighbors by arguing that Martin did not pursue quantum meruit at trial has no merit as we have previously stated. Further, the recovery at trial of approximately half of the amount of damages sought in the original petition in no way diminishes Martin's prevailing party status. The KFPCCA is not an issue in our appeal, and it in no way benefits Trinity. Neighbors is a solid holding which supports that Martin was the prevailing party in the appeal before us.
Trinity's reliance on Midwest Asphalt Coating v. Chelsea Plaza Homes is of no avail. Midwest entered into a contract with Chelsea to repair a parking lot. When Midwest later sued Chelsea for work it claimed it completed, it relied on theories of quantum meruit, breach of contract, and the KFPCCA. The jury awarded Midwest $20,000 but did not indicate upon which theory it based the award. The district court subsequently denied Midwest's motion for attorney fees and costs, finding the jury verdict was based on quantum meruit and that Midwest had not carried its burden of establishing entitlement to attorney fees. 45 Kan.App.2d at 121, 125.
On appeal, our court affirmed the trial court noting the jury could have found Midwest's work was not satisfactory and breached the contract which would preclude recovery under the contract or that damages were awarded under the quantum meruit theory meaning there was no enforceable contract and no right to attorney fees. 45 Kan.App.2d at 123. Since we could not on appeal determine from the limited record presented to us which theory the jury relied on, we held the district court correctly ruled Midwest failed to show it was entitled to attorney fees and costs.
Trinity asserts that the finding Midwest failed to meet its burden of proof indicates Midwest failed to show it was the prevailing party. This argument is flawed. Midwest Asphalt Coating did not in any manner address the question of who was the prevailing party. Its applicability to our case is questionable, and it in no manner alters our conclusion that under Kansas law Martin is the prevailing party.
Even though Trinity did convince the jury that Martin failed to repair defective work and thus the jury reduced the award to Martin, under the clear holdings of Szoboszlay and Neighbors Construction Co., Martin was the prevailing party because it successfully prosecuted the action; prevailed on the main issue, its breach of contract claim against Trinity; and obtained a final judgment in its favor of $24,788.
The district court erred in holding Martin was not the prevailing party under Kansas law.
Missouri law
The parties agree that in Missouri for many years the prevailing party is the litigant who prevails on the main issue. Birdsong v. Bydalek, 953 S.W.2d 103, 124 (Mo.App.1997), stated:
“Black's Law Dictionary, page 1188 [6th ed.1990] defines ‘prevailing party’ like this:
“The party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision ... is rendered and judgment entered....' [Citations omitted.]
“In Ozias v. Haley, 141 Mo.App. 637, 125 S.W. 556 [1910], the question arose about cost assessment in multi-claim litigation. The western district dealt with the question of who ‘prevailed’ as follows:
“ ‘It transpires frequently that in the verdict each party wins on some of the issues and as to such issues he prevails, but the party in whose favor the verdict compels a judgment is the prevailing party. Each side may score, but the one with the most points at the end of the contest is the winner....’ Id. 125 S.W. at 557.”
Also see Major Saver Holdings v. Education Funding, 350 S.W.3d 498, 510 (Mo.App.2011) (same definition as above); Brooke Drywall v. Building Const., 361 S.W.3d 22, 27 (Mo.App.2011) (“A ‘prevailing party’ is one who obtains a judgment from the court, regardless of the amount of damages. [Citations omitted.] A party need only obtain ‘some relief from the court to be deemed the ‘prevailing party.’ ”).
This is precisely the same language the Kansas Supreme Court quoted with approval in Szoboszlay, 233 Kan. at 482.
With the above language appearing in many Missouri appellate decisions, the parties to this appeal focus on the “main issue” language and argue essentially two questions: (1) What is the main issue? and (2) Did Martin prevail on that issue?
Martin argues that the main issue it presented to the jury and the one it prevailed on was whether Trinity breached the subcontract. There is no question but that Martin did prevail on this issue as the jury awarded it $32,737.28 of the $35,000 ultimately requested. Martin further contends that at trial Trinity attempted to make the failure of the sewer line the main issue and based on the jury verdict that question was clearly resolved in Martin's favor.
Trinity argues on appeal that there was three issues and that Martin was only partially successful on one—the breach of contract claim—where it only made a partial recovery. Trinity says it prevailed on the other two—its breach of contract claim—and preventing Martin from raising its quantum meruit claim at trial.
We can easily disregard Trinity's last argument for as we have earlier stated and the district court held there was no success on Trinity's part as to the quantum meruit issue as Martin elected not to take it to trial.
Essentially, this leaves the issues of both of the parties directly related to the subcontract and the jury's finding that Trinity breached the contract by failing to pay Martin in full for work performed in the amount of $32,737.28 but that such damages award should be reduced by $7,949.28 for Martin's failure to repair defective and deficient and/or failure to complete work on the project.
If this jury verdict is analyzed in light of the language from Ozias v. Haley, 141 Mo.App. 637, 125 S.W. 556 (1910), which Birdsong v. Bydalek quoted, it is clear that Martin must be considered the prevailing party. Ozias said that where each party wins on some of the issue, “the party [Martin] in whose favor the verdict compels a judgment is the prevailing party. Each side may score, but the one [Martin] with the most points at the end of the contest is the winner.” 125 S.W. at 557.
Missouri law on the determination of what is the main issue is fact driven but appears to identify the main issue as it relates to the party seeking attorney fees. See Paradise v. Midwest Asphalt Coatings, Inc., 316 S.W.3d 327, 329–30 (Mo.App.2010) (examining the main issue of the party appealing the denial of attorney fees); Corley v. Corley, 128 S.W.3d 521, 526–27 (Mo.App.2003) (examining claim-by-claim what each party wanted and whether each party obtained what it desired on each of its claims); Ken Cucchi Const, Inc. v. O'Keefe, 973 S.W.2d 520, 528 (Mo.App.1998) (examining attorney fee issue and identifying “plaintiff's primary contention”); but see Miller v. Gammon & Sons, Inc., 67 S.W.3d 613, 625–26 (Mo.App.2001) (examining both of the issues raised in the case and determining whether the appellants prevailed on each claim).
In the appeal before us, the main issue was the parties' obligations under the subcontract and, while both scored at the trial, the prevailing party is clearly Martin.
Trinity points out that being awarded monetary damages does not necessarily equate to prevailing, relying on Flamingo Pool, Spas, Sunrooms Etc. v. Penrod, 993 S.W.2d 588 (Mo.App.1999). The dispute here was over a contractual clause that provided for additional compensation in the construction of a swimming pool if rock was encountered during excavation for the pool. Flamingo Pool was awarded only $2,000, slightly less than a one-third of what was requested and was not considered to be the prevailing party on the “rock clause” issue. 993 S.W.2d at 590.
However, Missouri caselaw clearly does not require the “prevailing party” to receive the full extent of the monetary damages it sought. After the offset the jury awarded Trinity because of Martin's breach, Martin received $24,788 out of the $35,000 award to which the jury was limited. At nearly 71 percent of the damages requested, this is a high percentage of the damages requested, sufficient to conclude that unlike the plaintiff in Flamingo Pool, Spas, Sunrooms Etc., Martin prevailed on the main issue. See also Major Saver Holdings, 350 S.W.3d at 510 (“The prevailing party is the party ‘who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of its original contention.’ [Citation omitted.]”) (Emphasis added.)
Based on the preceding analysis of the numerous Missouri cases, we hold Martin was the prevailing party under Missouri law on the main issue in this case. The district court erred in finding Martin had not prevailed.
We do not agree with Martin's contention that the amount of attorney fees, costs, and expenses was not disputed below and should be ordered paid if we find it was the prevailing party. Based on the district court's ruling, the amount to be awarded was never reached or considered and this issue must be determined on remand.
We have resolved this appeal without the necessity of deciding whether Missouri or Kansas law must be applied in determining the “prevailing party” question. However, if the law of Missouri or Kansas is appreciably different as to how the district court is to decide the amount of attorney fees, costs, and expenses to award to Martin, then it becomes necessary for us to decide which state's law the district court is to utilize on remand.
Fortunately, the calculation and determination of the reasonableness of the amount of attorney fees to be allowed appears to be extremely similar in both Missouri and Kansas. Like Kansas, Missouri places the determination of the amount of reasonable attorney fees to be within the trial court's sound discretion. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013); DeWalt v. Davidson Service/Air, Inc., 398 S.W.3d 491, 506 (Mo.App.2013).
Moreover, appellate courts in both states consider the district courts' experts on the reasonableness of attorney fees. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 (2006) (stating that the district court is an expert in the area of attorney fees and can draw upon and apply its own knowledge and expertise in determining their value); Major Saver Holdings. v. Education Funding, 350 S.W.3d 498, 509 (Mo.App.2011) (“[T]he trial court is deemed to be an expert on the necessity, reasonableness, and the value of attorneys' fees. [Citation omitted .]”).
More specifically, the Missouri Supreme Court recently stated:
“While the trial court has discretion to award reasonable attorneys' fees, there are factors that may be considered to determine the amount of attorneys' fees to award. [Citation omitted .] One consideration in determining the amount of attorney fees is the result achieved. [Citations omitted.] Other relevant factors in determining the value and amount of statutorily authorized fees include: 1) the rates customarily charged by the attorneys involved in the case and by other attorneys in the community for similar services; 2) the number of hours reasonably expended on the litigation; 3) the nature and character of the services rendered; 4) the degree of professional ability required; 5) the nature and importance of the subject matter; 6) the amount involved or the result obtained; and 7) the vigor of the opposition. [Citation omitted.]” Berry v. Volkswagen Group of America, Inc., 397 S.W .3d 425, 431 (Mo.2013).
Likewise, the Kansas Supreme Court recently reaffirmed:
“In evaluating the reasonableness of an award of attorney fees, ... a court should consider the eight factors set forth in KRPC 1.5(a) (2012 Kan. Ct. R. Annot. 492). [Citations omitted.] Those eight factors are:
“ ‘(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
“ ‘(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
“ ‘(3) the fee customarily charged in the locality for similar legal service;
“ ‘(4) the amount involved and the results obtained;
“ ‘(5) the time limitations imposed by the client or by the circumstances;
“ ‘(6) the nature and length of the professional relationship with the client;
“ ‘(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
“ ‘(8) whether the fee is fixed or contingent.’ [Citation omitted.]” Snider, 297 Kan. at 169.
Missouri does not include all the factors listed in Kansas, but Missouri caselaw clearly states that the factors listed in their opinions are a nonexclusive list. See Hutchings ex rel. Hutchings v. Roling, 193 S.W.3d 334, 351 (Mo.App.2006) (“The factors relevant to a determination of a reasonable amount of attorney's fees under a statute that authorizes an award of reasonable fees include [the seven factors listed above], [Citation omitted.] )” (Emphasis added.); Next Day Motor Freight, Inc. v. Hirst, 950 S .W.2d 676, 680 (Mo.App.1997) (“In determining the reasonable value and amount of attorney fees recoverable, there are many factors appropriate for consideration. They include: [the seven factors listed above]. [Citation omitted.]”) (Emphasis added.)
It is clear to us that it makes absolutely no difference whether Kansas or Missouri law is utilized to determine the attorney fees to be allowed on remand as the factors are essentially the same. Thus, to decide the choice-of-law question would be contrary to the holdings of Francis, Stonewall Ins., and Oppenheimer previously cited in this opinion and would, in effect, be an advisory opinion which we are taught not to render. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, Syl. ¶ 2, 210 P.3d 105 (2009).
On remand, the district court should determine the amount of attorney fees to be allowed based on its sound discretion utilizing all of the factors applicable to this case.
Finally, Martin has filed a Supreme Court Rule 7.07 (2012 Kan. Ct. R. Annot. 66) motion requesting attorney fees on appeal based on its contention that it was the prevailing party in the court below. Based on our decision on appeal that Martin was the prevailing party below and the contractual provisions in the contract between the parties, Martin is entitled to attorney fees, costs, and expenses incurred on appeal.
We have examined Martin's Supreme Court Rule 7.07(b)(2) affidavit and attached exhibit and find that attorney fees of $9,620.50 are reasonable, $702.44 in costs, and transcript expenses of $2,912 should be allowed. We award attorney fees, costs, and expenses totaling $13,234.94 and direct the district court to enter judgment in this amount on behalf of Martin and against Trinity as a money judgment in the court below.
Reversed and remanded to the district court to take the actions as directed in this opinion.