Opinion
No. 108,585.
2013-09-27
Mary SOMRAK and Mary Jennell Tebbetts, Appellants, v. JUNGHANS AGENCY, INC., Appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Dan E. Turner and Phillip L. Turner, of Turner & Turner, of Topeka, for appellants. David P. Troup and Keith R. Henry, of Weary Davis, L.C., of Junction City, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Dan E. Turner and Phillip L. Turner, of Turner & Turner, of Topeka, for appellants. David P. Troup and Keith R. Henry, of Weary Davis, L.C., of Junction City, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
ATCHESON, J.
Plaintiffs Mary Somrak and Mary Jennell Tebbetts appeal from an order of the Geary County District Court awarding attorney fees to Defendant Junghans Agency, Inc., under the terms of a contract for the management of rental property they own. Somrak and Tebbetts contend the district court lacked jurisdiction to consider the attorney fee request and the Junghans Agency effectively waived its contractual right to those fees. We disagree and affirm the district court.
Somrak and Tebbetts hired the Junghans Agency to manage nine mobile homes they owned and rented out. The contract between the parties provides that if the Junghans Agency “successfully defends any action brought ... by” Somrak and Tebbetts, the company may recover from them its costs, including a reasonable attorney fee. Somrak and Tebbetts were dissatisfied with the management services the Junghans Agency provided and sued for breach of contract and various torts. The district court granted summary judgment to the Junghans Agency. In a separate appeal, Somrak and Tebbetts challenged the summary judgment. And in a separate decision, we have affirmed the judgment on the merits in favor of the Junghans Agency against Somrak and Tebbetts.
In this appeal, Somrak and Tebbetts do not dispute the reasonableness of the amount the district court awarded the Junghans Agency as attorney fees. So we needn't parse the hours the lawyers for the company say they spent on the case, compare the hourly rates with the marketplace charges for legal services, or otherwise independently assess the award itself. In the absence of an objection from Somrak and Tebbetts to the amount, we may presume the amount of the award conforms to the contractual right the parties fashioned for themselves and is otherwise reasonable. We, likewise, need not delve into the underlying dispute between Somrak and Tebbetts and the Junghans Agency. We dealt with it in the companion appeal.
Based on the procedural history of the case, Somrak and Tebbetts contend the Junghans Agency waited too long to file its motion for contractual attorney fees and, as a result, the district court had lost jurisdiction to rule on the request and the company waived its right to fees. We briefly go over the procedural milestones. In its answer to the petition, the company included a paragraph specifically citing its right under the management contract to attorney fees and requested attorney fees and expenses as part of the relief to which it was entitled. The Junghans Agency later filed a motion for summary judgment. The district court entered an order granting summary judgment to the company on March 6, 2012. The order makes no mention of attorney fees. The Junghans Agency had neither sought attorney fees in the summary judgment motion nor filed a separate request for them—that's not surprising, since the company had not “successfully defended” the action until summary judgment was granted in its favor.
The company did not file a motion to alter or amend the judgment under K.S.A. 60–259 to address attorney fees, but such a motion likely would have been procedurally improper because the issue of attorney fees had not yet been put before the court for determination. See Magstadtova v. Magstadt, 31 Kan.App.2d 1091, 1096, 77 P.3d 1283 (2003). Somrak and Tebbetts filed a notice of appeal from the summary judgment in the district court on March 30 and then filed their docketing statement in this court on April 18. In the meantime, on April 12, the Junghans Agency filed its motion for attorney fees and supporting documentation with the district court. The district court entered an order on July 20, 2012, awarding the company $15,289.69 in attorney fees and $439.96 in expenses.
Somrak and Tebbetts argue that the district court lost jurisdiction over the case and, hence, the motion for attorney fees 30 days after granting the motion for summary judgment. In support of their position, they cite K.S.A. 60–2103(a), fixing the time for filing a notice of appeal as 30 days after the district court's entry of judgment. The Kansas Supreme Court has recognized that a district court typically loses jurisdiction over a civil case when the docketing statement is filed with the clerk of the appellate courts. See ARY Jewelers v. Krigel, 277 Kan. 464, 473–74, 85 P.3d 1151 (2004); In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 12, 687 P.2d 603 (1984). But the rule is subject to an exception permitting the district court to retain jurisdiction over matters collateral to the judgment on the merits. The appellate courts have recognized that motions for attorney fees come within that exception because an attorney fee award requires the party to have prevailed on the merits of the substantive claims being litigated. Moritz Implement Co. v. Matthews, 265 Kan. 179, 189–90, 959 P.2d 886 (1998); Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 377–78, 789 P.2d 211 (1990); Magstadtova, 31 Kan.App.2d at 1096–97.
As the Moritz court pointed out, a judgment on the merits “does not prevent the parties from adjudicating the amount to be awarded for attorney fees at the time when the fees can be properly and finally assessed.” 265 Kan. at 190. In Snodgrass, the court recognized that a judgment may be final for purposes of appeal even though a motion for attorney fees has yet to be decided. 246 Kan. at 377. And an appeal of the merits judgment does not divest the district court of jurisdiction to resolve a request for attorney fees. 246 Kan. at 378. This court applied those precepts to allow a district court to hear a motion for attorney fees months after the judgment on the merits had been entered. In doing so, this court noted requests for attorney fees are “treated as collateral matters that routinely are considered after a decision on the merits.” Magstadtova, 31 Kan.App.2d at 1096–97.
That body of law drives the decision in this case and calls for the rejection of the position Somrak and Tebbetts have staked out. The district court had jurisdiction to decide the Junghans Agency's motion for attorney fees.
We find nothing that would independently signal a waiver of the Junghans Agency's contractual right to recover attorney fees for its successful defense of this action. The company neither made statements nor took action consistent with abandoning a request for attorney fees. First Nat'l Bank of Omaha v. Centennial Park, 48 Kan.App.2d 727, 303 P.3d 705 (2013) (“waiver is an intentional relinquishment of a known right”). The company didn't waive its right to seek attorney fees simply by waiting to file the motion requesting them.
Affirmed.