Somrak v. Junghans Agency, Inc.

309 P.3d 974

Mary SOMRAK and Mary Jennell Tebbetts, Appellants,

v.JUNGHANS AGENCY, INC., Appellee.

No. 108,585.

Court of Appeals of Kansas.

Sept. 27, 2013.

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...