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