Osterman v. Sears11/26/2003
was K-Designers, not Sears, that arrived to install the siding.
On October 7, 1996, at the completion of installation, Osterman tendered a check to K-Designers for approximately $11,000 and signed a Certificate of Completion acknowledging "that all goods and services sold to us by K-Designers have been furnished and performed in a workmanlike manner and in accordance with the terms of said contract." However, shortly after signing this document, Osterman discovered numerous defects in the installation of the siding. In particular, she noticed that the trim was not properly installed, that nails were put through the siding at inappropriate places, that some of the trim siding was attached to the house with double sided tape, and that the siding material was inappropriate to Montana's climate. Osterman accordingly notified her local Sears store regarding her dissatisfaction.
Following several warranty service calls by both K-Designers and Sears, Osterman continued to be dissatisfied with the siding project. On May 4, 1999, Osterman filed suit, seeking damages for actual and constructive fraud, negligent misrepresentation, breach of express warranty, negligent hiring of an independent contractor, negligent installation, and deceptive, unfair trade practices.
After substantial discovery, K-Designers filed a motion for summary judgment asserting that Osterman's claims for fraud, misrepresentation, and unfair trade practices were barred by the applicable two years statute of limitations. Thereafter, both K-Designers and Sears moved for summary judgment on the merits of Osterman's fraud, negligent misrepresentation, and unfair trade practices claims, with K-Designers additionally requesting summary judgment on Osterman's claims for negligent installation and breach of express warranty.
Following a hearing, the District Court granted summary judgment in favor of KDesigners and Sears on Osterman's claims for actual and constructive fraud, as well as unfair trade practices, as time barred. The District Court also concluded that summary judgment on the merits of these claims and on Osterman's negligent misrepresentation claim was appropriate. The court reserved the breach of express warranty, negligence, and negligent hiring of an independent contractor claims for trial.
On November 9, 2000, a Cascade County jury returned a verdict for Osterman in the amount of $12,500 for breach of express warranty against both K-Designers and Sears. The jury rejected, however, Osterman's negligent installation claim against K-Designers and the negligent hiring of an independent contractor claim against Sears.
Osterman thereafter moved for an award of attorney fees and costs. Pursuant to the Sales Agreement entered with K-Designers, the District Court determined Osterman was entitled to recover attorney fees and costs, but only from K-Designers and only with respect to her breach of express warranty claim. The court accordingly scheduled a hearing to determine the proper amount of fees and costs to be awarded to Osterman.
At the hearing, Osterman's attorneys indicated that they had expended 147.15 hours prior to the entry of summary of judgment, which dismissed four of Osterman's seven claims, and 68.65 hours thereafter, for a total of 215.80 hours. Allocating this time between the various claims on a pro rata basis, the District Court concluded Osterman was entitled to one-seventh of the 147.15 hours expended prior to the entry of summary of judgment, or 21.02 hours, and one-third of the 68.65 hours spent thereafter, or 22.88 hours, for a total of 43.9 hours. At $125.00 per hour, which the parties agreed was a reasonable hourly rate, the
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