Opinion
NO. 2011 CA 1204
03-28-2012
SOD FARM, L.L.C. v. LAKEWOOD DEVELOPMENT, L.L.C.
W. Christopher Beary David A. Rosiglioni Jeffrey L. Oakes Angel L. By rum New Orleans, LA Attorneys for Plaintiff-Appellee, Sod Farm, L.L.C, Jack E. Morris Metairie, LA Attorneys for Defendant-Appellant, Lake wood Development, L.L.C. David C. Loeb New Orleans, LA
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 2008-12719
Honorable Richard A. Swartz, Judge Presiding
W. Christopher Beary
David A. Rosiglioni
Jeffrey L. Oakes
Angel L. By rum
New Orleans, LA
Attorneys for Plaintiff-Appellee,
Sod Farm, L.L.C,
Jack E. Morris
Metairie, LA
Attorneys for Defendant-Appellant,
Lake wood Development, L.L.C.
David C. Loeb
New Orleans, LA
BEFORE: CARTER, C.J., PARRO, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
Lakewood Development, L.L.C. (Lakewood) appeals from a trial court judgment awarding attorney's fees to Sod Farm, L.L.C. (Sod Farm). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
As set forth in the companion appeal, Sod Farm, L.L.C. v. Lakewood Development, L.L.C, 11-1203 (La. App. 1st Cir. 3/23/12) (unpublished), Sod Farm filed a petition for damages and enforcement of mortgage against Lakewood on May 22, 2008, based on an alleged breach of contract. Following a bench trial, the trial court signed a judgment on September 9, 2010, reforming the contract and finding that Sod Farm was entitled to reasonable attorney's fees. On October 22, 2010, Sod Farm filed an "Application for Attorneys Fees and Expenses" requesting that the court, in accordance with the September 9, 2010 judgment, approve $220,475.79 for its attorney's fees and expenses, which include court costs. In support of its application, Sod Farm attached a summary of monthly fees, expenses, and bills sent to it by its attorneys, detailing the time and services rendered. Lakewood filed a memorandum in opposition to Sod Farm's application. The matter was scheduled to be heard on February 7, 2011. On that day, the parties agreed that the matter would be continued in order to try to resolve the issue, and they were each given time to submit additional memoranda. The parties were unable to reach a settlement; therefore, the court took the matter under advisement. On March 23, 2011, judgment was signed granting judgment in favor of Sod Farm and against Lakewood in the amount of $175,000.00 for reasonable attorney's fees and expenses, including court costs, incurred by Sod Farm.
Lakewood appeals, alleging three assignments of error: (1) the trial court erred as a matter of law in awarding attorney's fees to Sod Farm; (2) the trial court abused its discretion in awarding Sod Farm $175,000 in attorney's fees and expenses; and (3) the trial court abused its discretion in awarding Sod Farm the cost of depositions not used at trial.
DISCUSSION
This court affirmed the trial court's award of attorney's fees in the companion appeal (Sod Farm, L.L.C. v. Lakewood Development, L.L.C, 11- 1203 (La. App. 1st Cir. 3/23/12) (unpublished). Therefore, we will review Lakewood's second and third assignments of error.
Attorney's Fees
Lakewood contends that the trial court abused its discretion in awarding Sod Farm $175,000.00 in attorney's fees. Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence of counsel; and (10) the court's own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct; State, Dep't of Transp. and Dev. v. Williamson, 597 So.2d 439, 442 (La. 1992); Mayfield v. Reed, 43,226 (La. App. 2nd Cir. 4/30/08), 981 So.2d 235, 241. The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Regions Bank v. Automax USA, L.L.C, 02-1755 (La. App. 1st Cir. 6/27/03), 858 So.2d 593, 595, writ denied, 03-2131 (La. 11/7/03), 857 So.2d 503.
Lakewood reasons that the award of attorney's fees was excessive, because this was a breach of contract case with a limited number of witnesses and exhibits and was tried in only one day. Sod Farm attached for the trial court's review a summary of the bills paid to its law firm and the invoices detailing the time, billing rate, and activities of the firm in furtherance of the lawsuit. The court also heard the underlying claim and the exceptions and read all the briefs filed in this suit. The trial court reduced the amount of fees requested by Sod Farm by about 20% and determined after review of the invoices that "Sod Farm is entitled to reasonable attorneys' fees and expenses, including court costs in the amount of $175,000.00."
Considering the complexities of this matter and the factors set forth in Rule 1.5(a), we cannot say that the attorney fees approved by the trial court were unreasonable. Because the trial court has much discretion in setting a reasonable attorney fee under the circumstances of a particular case, after a thorough review of the record, we find that the amount approved was not an abuse of discretion. This assignment of error has no merit.
Cost of Depositions
Lakewood argues that Sod Farm was not entitled to recover the cost of depositions that it did not use at trial. In support of its position, Lakewood relies on Russell v. Snelling Personnel, 01-2134 (La. App. 1st Cir. 10/9/02), 835 So. 2d 672 and La. R.S. 13:4533. Russell states:
La. R.S. 13:4533 does provide that only depositions "used on the trial" can be taxed as costs, and only depositions that are introduced and accepted into evidence are considered "used on the trial" for purposes of the statute. Accordingly, it is an abuse of discretion for a trial judge to award costs for a deposition that was not introduced into evidence at trial. (Citations omitted).Lakewood's reliance on Russell is misplaced. La. R.S. 13:4533 refers to costs allowed to be taxed as court costs. It does not apply to the costs of a deposition as a portion of reasonable attorney's fees provided for in a contract. This assignment of error has no merit,
The contract provided, in pertinent part, "that if legal proceedings are instituted for foreclosure, [Lakewood] agrees to pay reasonable and customary attorney fees."
CONCLUSION
For the foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are assessed to Lakewood Development, L.L.C.
AFFIRMED.