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Village Shopping Center Partnership v. Kimble Development, LLC

Court of Appeals of Louisiana, Fifth Circuit

December 30, 2019

VILLAGE SHOPPING CENTER PARTNERSHIP
v.
KIMBLE DEVELOPMENT, LLC AND MICHAEL KIMBLE

          ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 82, 418, DIVISION "C" HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, VILLAGE SHOPPING CENTER PARTNERSHIP Leonard A. Davis Charles M. King

          COUNSEL FOR DEFENDANT/APPELLEE, KIMBLE DEVELOPMENT, LLC AND MICHAEL KIMBLE David C. Fleshman David B. Phelps Ross A. Dooley

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE

         In this appeal, appellant, Village Shopping Center Partnership ("Village"), seeks review of the trial court's award of attorneys' fees of $24, 173.64, which was less than half of the amount of the $64, 316.09 in attorneys' fees sought by Village. After review of the record, we amend the trial court's judgment awarding $24, 173.64 in attorneys' fees; and render judgment awarding Village $44, 316.09 in attorney fees.

         FACTS AND PROCEDURAL HISTORY

         The background of this case is set forth in Village Shopping Center Partnership v. Kimble Development, LLC and Michael Kimble, 18-740 (La.App. 5 Cir. 4/24/19), 271 So.3d 376.

         In 2013, appellee, Kimble Development, LLC ("Kimble"), entered into a Contract for Development with Village to build an O'Reilly Auto Parts store on Village's property. According to the contract, Village agreed to pay Kimble a development fee of $35, 000, and Kimble agreed to be responsible for all construction costs of the building exceeding $688, 944.00, with the exception of unforeseen or uncontrollable costs such as asbestos or environmental mitigation and site clean-up. Pursuant to a contract addendum, the construction costs were adjusted to $713, 413.71, thereby increasing Kimble's obligation for costs exceeding that amount. Village ultimately paid construction costs of $761, 700.99, in addition to the $35, 000.00 development fee. Village sought reimbursement from Kimble for the overpayment. Kimble refused to pay Village for the overpayment and litigation ensued.

         After discovery concluded, Village filed a motion for summary judgment, seeking to recover from Kimble the overpayment owed under the contract. The trial court granted Village's summary judgment motion on July 20, 2018, awarding $48, 347.28. On appeal of that judgment, this Court affirmed the trial court's judgment granting Village's motion for summary judgment and the award of damages to Village. Village Shopping Center Partnership, supra.

         In Village's petition for damages and accounting and reimbursement, Village also asserted that it would be entitled to attorneys' fees and costs from Kimble. The contract contained a provision stating that the "prevailing party in any litigation or dispute regarding breach and enforcement of this Agreement shall be entitled to reasonable attorneys' fees and court costs from the non-prevailing party." Village sought $64, 316.09 in attorneys' fees and costs related to its contractual claim against Kimble. Kimble objected to this amount.

         In conjunction with seeking its attorneys' fees, Village set forth the work necessary to obtain a judgment in this contractual matter. After attempts to resolve the matter amicably failed, Village's counsel investigated Kimble and drafted and filed the petition. In response to the petition, Kimble filed a peremptory exception of no right of action, which required consultation with the client, legal research, drafting and filing an opposition, and a court appearance. Kimble's exception was ultimately denied. Village also had to plan and prepare a defense to Kimble's affirmative defenses asserted in its answer. Village issued and responded to discovery requests, reviewing more than 2, 000 pages of documents from Kimble's production. Village prepared for corporate representative depositions by compiling exhibits totaling hundreds of pages and preparing outlines for the depositions of Kimble's two corporate representatives.

         After reviewing the deposition transcripts and discovery documents, Village's counsel prepared a Motion for Summary Judgment, a statement of essential legal elements, a statement of undisputed facts, and organized sixteen (16) exhibits to attach to the motion. Village also drafted a reply to Kimble's opposition and argued the motion in trial court. All of this was done successfully to obtain summary judgment in favor of Village for the full amount requested.

         In support of its claim for attorneys' fees, Village submitted invoices and billing statements alleging entitlement to $64, 316.09 in attorneys' fees and costs. Kimble submitted two oppositions to Village's motion for attorneys' fees, and Village filed two reply memos. Relative to the amount of the fees, Village asserted that all fees were reasonable, as well as emphasized that the litigation took approximately two years, and that it obtained a judgment for the full amount sought in the petition. Hearings were held on October 29, 2018 and December 13, 2018 to determine the amount of attorneys' fees and costs to which Village was entitled. At the hearing, Village's counsel testified regarding the fees incurred. Upon review, the trial court ...


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