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Diamond Concrete & Slabs, LLC v. Andalusia-Opp Airport Auth.

Alabama Court of Civil Appeals

May 15, 2015

Diamond Concrete & Slabs, LLC
Andalusia-Opp Airport Authority (n/k/a the South Alabama Regional Airport Authority) and Southern Structures Corporation

          Appeal from Covington Circuit Court. (CV-07-73).


Page 1072

          DONALDSON, Judge.

         This case stems from a dispute regarding an unpaid invoice of $14,055 sent by Diamond Concrete & Slabs, LLC (" Diamond" ), seeking payment from Southern Structures Corporation (" Southern" ) and the Andalusia-Opp Airport Authority, which is now known as the South Alabama Regional Airport Authority (" the Airport Authority" ). Diamond also sought, among other things, an award of attorney fees pursuant to § 8-29-1 et seq., Ala. Code 1975 (" the Prompt Pay Act," also referred to as " the Miller Act" ). The Covington Circuit Court (" the trial court" ) ultimately entered a judgment in Diamond's favor, awarding it the amount of the unpaid invoice and $5,622 in attorney fees. The attorney fee award was computed as a percentage of the amount of the unpaid invoice instead of as a lump-sum amount of $247,275, as requested by Diamond, based on an hourly attorney-fee agreement between Diamond and its counsel. Diamond appeals as to the attorney-fee award, asserting that the amount awarded is inadequate. We hold that the amount of attorney fees awarded is inconsistent with and unsupported by the evidence in the record, and, accordingly, we reverse the judgment insofar as it awarded attorney fees and remand the cause to reconsider the attorney-fee award.

         In May 2005, the Airport Authority hired Southern to construct a hangar, and Southern subcontracted with Diamond to construct a concrete floor for the hangar. The concrete floor was alleged to be defective. Southern hired another subcontractor to correct the alleged defects. Southern paid Diamond $35,161, Diamond's original bid amount, for the work it had

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performed. Diamond claimed that, after deducting the $7,200 Southern had paid to the other subcontractor to correct the alleged defects in the floor, Southern still owed $14,055 to Diamond for additional work and expenses due to a change in Southern's requirements for constructing the floor.

         On February 27, 2007, Diamond filed a complaint in the Montgomery Circuit Court against Southern and the Airport Authority, stating a breach-of-contract claim against Southern only and a conversion claim and a claim pursuant to the Miller Act (" the prompt-pay claim" ) against both Southern and the Airport Authority. At the request of Southern and the Airport Authority, the Montgomery Circuit Court transferred the case to the trial court. Southern and the Airport Authority denied liability in their answer and asserted counterclaims against Diamond seeking damages arising from allegedly defective work.

         Litigation proceeded over the next three years. The case proceeded to a jury trial. After a five-day trial, the jury returned a verdict on July 1, 2010, in favor of Diamond on the counterclaims and on Diamond's breach-of-contract claim, finding that Diamond was entitled to $14,055 and should have been paid on September 30, 2006.[1] The trial court subsequently entered a judgment as a matter of law (" JML" ) on Diamond's prompt-pay claim. Diamond appealed, and on August 12, 2011, this court reversed the JML, finding that Diamond was entitled to $14,055 on its prompt-pay claim pursuant to a subcontract with Southern and the Airport Authority.[2] We remanded the cause to the trial court " to determine whether Diamond is entitled to recover interest, an attorney fee, and expenses under its prompt-pay claim." Diamond Concrete & Slabs, LLC v. Andalusia-Opp Airport Auth., 103 So.3d 73, 83 (Ala.Civ. 2011).

         On September 10, 2013, the trial court conducted a hearing and received documents and testimony from Diamond, Southern, and the Airport Authority. Diamond requested $247,275 in attorney fees based on an hourly fee agreement with its attorneys. In support of its claimed fees and expenses, Diamond offered several documents, including a detailed billing statement claiming 989.1 hours of legal services billed at a rate of $250 per hour, amounting to a total of $247,275; a detailed case-expense statement listing expenses totaling $11,780.72; and a copy of the fee agreement that Diamond signed with its counsel. Counsel for Diamond

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testified that counsel had billed for time expended on the case that included " pre-suit time and includes litigation time and includes post trial and appellate at two different layers, the court of civil appeals and then, ultimately, the work that we did when it went up on cert to the supreme court." Clark Dunn, the owner of Diamond, testified that he thought the amounts claimed by his counsel were reasonable. Diamond offered testimony from Brooke Lawson, an attorney who had represented third-party defendants in the litigation. Lawson testified that he had reviewed the amounts claimed by counsel for Diamond, and he stated that he found the " billings to be reasonable and consistent with what attorneys would have billed in that matter."

         The Airport Authority called one witness, attorney John Peek. Peek testified that he had extensive experience with collection cases but that he was not " intimately familiar with the case." Peek testified that " [t]here certainly could be a number of reasonable methods of assessing fees, but I think the most common method and the most generally accepted one would be the contingent fee basis." Peek stated that he thought the requested fees in this case were unreasonable, but he admitted: " I've looked at the front page and back page of this bill. I've not looked at the remainder of it." On cross-examination, Peek admitted that he had been asked to testify earlier on the morning of the hearing and that he did not " know and understand the complexities of the case." After Peek's testimony, the Airport Authority attempted to call a second witness, and Diamond attempted to call a rebuttal witness. However, the trial court did not allow either witness to testify and stated: " Stop making any comment on what anybody's bill was or was not. I just don't need to hear it anymore."

         On March 7, 2014, the trial court entered an order denying Diamond's requested attorney fees as unreasonable, and it ruled that " a reasonable fee in this case [is] a 40% contingency fee which amounts to $5,622.00 plus expenses of $11,780.72 as claimed by ...

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