Osterman v. Sears11/26/2003
gage Source, Inc. v. Strong , 2003 MT 205, 8, 317 Mont. 37, 8, 75 P.3d 304, 8. A district court abuses its discretion if its fee award is based on an inaccurate view of the law or a finding of fact is clearly erroneous. Ihler v. Chisholm , 2000 MT 37, 24, 298 Mont. 254, 24, 995 P.2d 439, 24.
The District Court awarded attorney fees and costs to Osterman for the breach of warranty portion of her claim only, this being the only theory based upon contract for which Osterman received a verdict against both Sears and K-Designers. To calculate the award, the District Court allocated the total amount of time expended by Osterman's attorneys among the seven claims that existed prior to summary judgment, and the three claims which existed thereafter, on a pro rata basis. Based upon the evidence received at the June 13, 2001 hearing, the court awarded Osterman one-seventh of the time expended by her attorneys prior to entry of summary of judgment, or 21.02 hours, and one-third of their time expended thereafter, or 22.88 hours, for a total of 43.9 hours or a total fee of $5,487.50. The court similarly pro rated costs, awarding Osterman one-third of total costs, or $790.25.
Osterman asserts the District Court erred in applying such a mechanical, pro rata division of her requested attorney fees because each of her claims were inextricably intertwined and predicated upon common core facts. She argues that, in awarding attorney fees, a district court must focus on the nature of the claims advanced, regardless of their ultimate disposition.
Indeed, the United States Supreme Court rejected "a mathematical approach comparing the total number of issues in the case with those actually prevailed upon" for determining attorney fee awards in Hensley v. Eckerhart (1983), 461 U.S. 424, 435 n.11, 103 S.Ct. 1933, 1940 n.11, 76 L.Ed.2d 40, 52 n.11, upon which we have relied. See Laudert v. Richland County Sheriff's Dept. , 2001 MT 287, 18, 307 Mont. 403, 18, 38 P.3d 790, 18. The Hensley Court noted that " uch a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors." Hensley , 461 U.S. at 435, n.11, 103 S.Ct. at 1940 n.11, 76 L.Ed.2d at 52 n.11.
A pro rata calculation is also inconsistent with a consideration of the guidelines we have established for determining a reasonable fee award: (1) the amount and character of the services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or the value of the property to be affected; (5) the professional skill and experience called for; (6) the attorneys' character and standing in their profession; and (7) the results secured by the services of the attorneys. Swenson v. Janke (1995), 274 Mont. 354, 361, 908 P.2d 678, 68283; see also Plath , 36. Although these factors are not exclusive-that is, a district court may consider other factors-they serve as guidelines for determining what constitutes a reasonable fee. Morning Star Enterprises, Inc. v. R.H. Grover Inc. (1991), 247 Mont. 105, 113, 805 P.2d 553, 558. Because the District Court's pro rata calculation failed to consider these factors, Osterman was deprived of a proper assessment of her fee claim.
Accordingly, we reverse the District Court's attorney fee award and remand this matter for a determination of reasonable attorney fees in accordance with the requirements of Swenson , 274 Mont. at 361, 908 P.2d at 682-83, and Plath , 36.
Affirmed in part, reversed in part, and remanded.
JIM RICE
We concur:
KARLA M. GRAY
W. WILLIAM
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