Hillcrest Bank v. Millard et al

Filing 60

MEMORANDUM AND ORDER. IT IS ORDERED BY THE COURT that Plaintiff Bank Midwest's request for attorneys' fees is granted in the amount of $562,896.09. Signed by District Judge Julie A. Robinson on 11/20/2012.Mailed to pro se party Charles L. Castor, Jr., PO Box 366, Port Aransas, TX 78373 by regular mail. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BANK MIDWEST, N.A.,
Plaintiff,
v.

CRAIG J. MILLARD, et al.,
Defendants.
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Case No. 10-2387-JAR

MEMORANDUM AND ORDER
Currently before the Court is Plaintiff Bank Midwest, NA’s (“Bank Midwest”)
uncontested request for attorneys’ fees as part of its Motion for Summary Judgment, as
supplemented (Docs. 48, 58).1 Although uncontested, the Court will analyze the reasonableness
of Bank Midwest’s fee request.2 After review, the Court grants Plaintiff’s request for attorneys’
fees.
I.

Background
On September 24, 2012, this Court entered summary judgment in Bank Midwest’s favor

on its claims to collect on Guaranties made by Defendant, Craig J. Millard (Doc. 54). The Court
also determined that Bank Midwest was entitled to recover its attorneys’ fees pursuant to its

1

Defendant did not file an opposition to Plaintiff’s initial request for fees in its Motion for Summary
Judgment or to the supplemental exhibits in support of the motion filed per the Court’s directive, and the time for
filing any opposition has passed. Pursuant to D. Kan. Rule 7.4(b), the Court considers Plaintiff’s motion
uncontested.
2

See Wilkinson v. I.C. Sys., Inc., No. 09-2456-JAR, 2011 WL 5304150, at *2 (D. Kan. Nov. 1, 2011)
(explaining that the “lack of a response does not foreclose review and analysis of the request for fees”) (citing Case
v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998)).

breach of contract claims seeking to recover on the Guaranty Agreements.3 The summary
judgment order constitutes a judgment against Defendant by reason of the breach of the
Guaranties, and Bank Midwest is entitled to its reasonable attorneys’ fees. Thus, the issue before
the Court is whether Bank Midwest’s requested fee amount of $562,896.09 is reasonable. At the
Court’s directive, counsel for Bank Midwest has submitted detailed evidence to establish the
reasonableness of the Bank’s request for attorneys’ fees, specifically, detailed and
contemporaneous time records for the Court’s review (Doc. 58).
II.

Discussion
In analyzing requests for attorneys’ fees, Kansas courts consider the factors enumerated

in Kansas Rule of Professional Conduct (“KRPC”) 1.5(a): (1) the time and labor required, the
novelty and difficulty of the questions involved, and the skill requisite to perform the legal
services 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 services; (4) the amount involved and the results obtained; (5) the
time limitations imposed by the client or 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.4 A trial judge,
based upon experience and knowledge of the legal profession, is deemed an expert on attorney’s

3

See Terra Venture Inc. v. JDN Real Estate-Overland Park, LP, 242 F.R.D. 600, 602 (D. Kan. 2007) (citing
Wilkerson v. Brown, 995 P.2d 393, 395 (Kan. Ct. App. 1999)) (explaining that under Kansas law an award of
attorneys’ fees is allowed if authorized by express contractual agreement). The Loan Documents in this case all state
that the contracts are governed by the laws of Kansas.
4

See Johnson v. Westhoff Sand Co., 135 P.3d 1127, 1135–36 (Kan. 2006).

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fees and may draw on that expertise in rendering an award in a particular case.5 The
determination of the reasonable value of attorney’s fees lies within the sound discretion of the
trial court.6
The Court has conducted an analysis of the detailed time records submitted by Bank
Midwest and finds that the billed hours are reasonable. Although this lawsuit was primarily a
breach of contract action, there were related foreclosure and bankruptcy proceedings that
required the services of three law firms at various times and various venues. The law firm of
Lewis Rice & Fingerish (“Lewis Rice”) was retained to attempt to resolve the default by
Defendants and ultimately file the Complaint in these proceedings. The law firm of Bracewell &
Giuliani, LLP (“Bracewell”) was retained in connection with the bankruptcy of the Borrower and
the foreclosure on the real property. And, the law firm of Spencer Fane Britt and Browne LLP
(“Spencer Fane”) appears to have taken over for Lewis Rice, and was retained to represent Bank
Midwest in these proceedings, after Bracewell obtained relief from stay in the bankruptcy
proceedings. The vast majority of fees requested, $436,808.02, was paid to Bracewell in
connection with the foreclosure and bankruptcy proceedings, which involved preparing the
documents necessary for foreclosure and appointment of the receiver, filing proofs of claim and
a motion to lift stay, conducting discovery and instituting an agreed-upon stay for marketing
efforts related to the real property, obtaining and creating a DIP loan facility to keep a golf
course on the property operational, overseeing the use of Bank Midwest’s cash collateral, and
obtaining an order lifting stay. Lewis Rice and Spencer Fane also aggressively represented Bank

5

Thoroughbred Assocs., LLC v. Kansas City Royalty Co., LLC, 248 P.3d 758, 774 (Kan. Ct. App. 2011).

6

See City of Wichita v. BG Prods., Inc., 845 P.2d 649, 653 (Kan. 1993).

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Midwest’s interests in these proceedings, filing several successful motions with this Court.
Overall, the Court is satisfied that no billed attorneys’ fees are unnecessarily duplicative,7 and
the Court determines that the time and labor expended by counsel for Bank Midwest is
reasonable.
The Court also analyzed the billing rate for each time keeper that billed for this lawsuit.
Bank Midwest’s motion includes affidavits from a representative of each law firm outlining the
billing rate for each time keeper and explaining the firm’s billing protocol. The affidavits state
that the charged rates are “not excessive, redundant or otherwise unnecessary,” and are
“reasonable and necessary given the complexity of the legal issues involved.” The affidavits of
Lewis Rice and Spence Fane further state that the hourly rates charged were “consistent with the
prevailing market rates in Kansas City for similar services by lawyers and paralegals of
reasonably comparable skills, experience and reputation”; the affidavit of Bracewell makes the
same statement with respect to lawyers and paralegals in Texas, where the foreclosure and
bankruptcy proceedings were filed. The Court finds that the billing rates for the time keepers are
reasonable.
Finally, the remaining factors also support the reasonableness of Bank Midwest’s
requested fee award. The foreclosure and bankruptcy proceedings involved complex legal issues
related to the project at issue, which comprised an almost 1000-acre mixed-use, coastal
development, as well as the continued and unsuccessful objections of the Borrower to Bank
Midwest’s enforcement of its lien rights. Likewise, counsel in these proceedings succeeded in

7

See Robinson v. City of Edmond, 160 F.3d 1275, 1285, n.10 (10th Cir. 1998) (“The term ‘duplicative’ in
the context of attorney’s fee requests usually refers to situations where more than the necessary number of lawyers
are present for a hearing or proceeding or when multiple lawyers do the same task.”).

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obtaining dismissal of Defendant Millard’s counterclaim as well as summary judgment in the
amount of approximately $26 million, plus interest, in the Bank’s favor. And, Bank Midwest
engaged counsel on an hourly basis. Given consideration of all of the factors under KRPC 1.5,
the Court determines that Bank Midwest’s request should be granted and awards Bank Midwest
attorneys’ fees in the amount of $562,896.09.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Bank Midwest’s
request for attorneys’ fees is granted in the amount of $562,896.09.
IT IS SO ORDERED.
Dated: November 20, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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