Filed: 07/23/ :04:31 Fourth Judicial District, Ada County Christopher Rich, Clerk of the Court

Transcription

1 Filed: 07/23/ :04:31 Fourth Judicial District, Ada County Christopher Rich, Clerk of the Court By: Deputy Clerk - Korsen, Janine IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA EAGLE SPRINGS HOMEOWNERS ASSOCIATION, INC., vs. Plaintiff, JAN RODINA, Case No. CV MEMORANDUM DECISION AND ORDER GRANTING ATTORNEY FEES AND COSTS Defendant. The Court issued a Memorandum Decision and Order granting Summary Judgment to Plaintiff 1 and then Judgment was entered on April 17, On April 30, 2018, Plaintiff filed a Memorandum of Costs and Fees with supporting affidavit, requesting $ in costs as a matter of right; $2, in discretionary costs; and $49, in attorney and paralegal fees; for a total request of $52, On May 14, 2018, Defendant filed a Motion to Disallow Plaintiff s requests for an Award of Costs and Attorney Fees. Plaintiff filed a response with a supporting affidavit. The Court delayed determination on the attorney fees pending reconsideration which was decided July 23, Therefore, the Court considers the motion to disallow fully submitted. LEGAL STANDARD AND ANALYSIS A. Prevailing Party Regardless of the type of award requested attorney fee or costs the primary analysis requires the Court to determine the prevailing party. The determination of who is the prevailing party is in the discretion of the District Court. In making a prevailing 1 Memorandum Decision and Order Granting Summary Judgment, filed Mar. 30, Judgment, Apr. 17, Plaintiff s Memorandum of Costs and Attorneys Fees, filed Apr. 30, 2018, p. 10; Affidavit of Christopher M. Tingey in Support of Plaintiff s Memorandum of Costs and Attorney s Fees ( Tingey Aff ), filed May 1, Page 1 of 10

2 party determination, the Court considers, (a) the final judgment or result obtained in the action in relation to the relief sought by the respective parties; (b) whether there were multiple claims or issues between the parties; and (c) the extent to which each of the parties prevailed on each of the issues or claims. Chadderdon v. King, 104 Idaho 406, 411, 659 P.2d 160, 165 (Ct. App. 1983). Further, the prevailing party question is examined and determined from an overall view, not a claim-by-claim analysis. Jorgensen v. Coppedge, 148 Idaho 536, 538, 224 P.3d 1125, 1127 (2010). Here, the prevailing party determination is clear. The Court granted Plaintiff s Motion for Summary Judgment which granted Plaintiff s requested relief in the Complaint, and the Court denied Defendant s motion to reconsider. Therefore, the Court finds the Plaintiff is the prevailing party in this matter. B. Service of Plaintiff s Memorandum of Costs and Fees Defendant argues Plaintiff failed to properly serve Defendant, because Plaintiff served the memorandum by electronic mail and Defendant did not consent to be served by for any purpose. Defendant argues an award of fees and costs requires both timely filing and service which did not occur. 4 Rule 54(d)(4), requires a party who is claiming costs to file and to serve on the adverse party a memorandum of costs no later than 14 days after entry of judgment. Judgment was entered on April 17, 2018 so the deadline was May 1, 2018 to file a memorandum of fees. Plaintiff filed the memorandum on April 30, Therefore, the Memorandum of fees was timely filed. With regard to service on the Defendant, the Court finds whether Rodina consented to receipt of filings is immaterial as to whether service was proper. Angstman Johnson was allowed to withdraw as Rodina s attorney on March 5, Gary Neal filed his Notice of Appearance for Defendant on March 29, Therefore, Rodina was represented by counsel Gary Neal when Plaintiff filed and served the memorandum of fees and costs on April 30th. Pursuant to I.R.C.P. 5(b)(1), If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. IDAHO R. CIV. PRO. 5(b)(1). Further, under Def s Memo, p. 2. Order Granting Motion to Withdraw, filed Mar. 5, Notice of Appearance After Withdrawal of Defendant s Attorney of Record Page 2 of 10

3 the electronic rules for filing, attorneys may not opt-out and are required to electronically file documents in electronic filing districts. Only self-represented parties may opt-out of electronically filing. Electronic Filing Rule (b)(1)(a)(i) & (b)(1)(b). Ada County has had mandatory electronic filing since Plaintiff s Memorandum includes a certificate of service, showing Gary Neal was served a copy of the document through icourt. Because Rodina was represented by Neal at the time the memorandum was filed and served, normally this certification alone is sufficient to find valid service. See IDAHO R. CIV. PRO. 5(e). However, in response to Defendant s arguments, Plaintiff included copies of two s that indicate Plaintiff attempted to serve Neal through icourt, but were unable to because he was not linked with the case. The s do show that Plaintiff s Attorney s Office sent the Plaintiff s memorandum on May 1, 2018 as an attachment. Therefore, the Court finds Plaintiff s sent Neal a copy of the memorandum. 7 Any delay was either an error of icourt or Neal, and neither would be attributable to Plaintiff. When a digital error occurs that is not the fault of the filing party (the Plaintiff here), then the filing party is given the date it originally tried to file. Therefore, the Court finds Plaintiff s Memorandum of Costs and Attorney Fees was timely and properly served and will determine whether the requested fees and costs are appropriate. C. Costs Plaintiff requests $ in costs as a matter of right; $2, in discretionary costs; for a total request of $2, Costs as a Matter of Right With few exceptions, costs are awarded as a matter of right to the prevailing party in a civil case. IDAHO R. CIV. PRO. 54(d)(1)(A). See IDAHO CODE Plaintiff requests $ in costs as a matter of right comprised of $ for Court Filing Fees and $ for Enlarged Photograph Exhibits for Motion for Summary Judgment. 8 Idaho Civil Rule 54(d)(1)(C) enumerates costs paid to a prevailing party as a matter of right, which included court filing fees and reasonable costs of the preparation of models, maps, pictures, photographs, or other exhibits admitted in 7 8 Kindall Aff. 5-7, Exhibits C D. Pl s Memo, p. 2. Page 3 of 10

4 evidence as exhibits in a hearing or trial of an action, but not more than $500 for all of such exhibits of each party. IDAHO R. CIV. PRO. 54(d)(1)(C)(i)-(vii). Defendant objects to Plaintiff s request for costs as a matter of right. 9 Because these claimed costs are enumerated costs as a matter of right to be awarded to a prevailing party under the Rule, the Court awards Plaintiff $ in costs as a matter of right. 2. Discretionary Costs The court has the discretion to award a prevailing party additional items of cost not enumerated [as a cost as a matter of right] may be allowed on a showing that the costs were necessary and exceptional costs, reasonably incurred, and should in the interest of justice be assessed against the adverse party. 54(d)(1)(D). IDAHO R. CIV. PRO. [T]he district judge must make express findings that the costs are exceptional, necessary, reasonably incurred, and should in the interest of justice be assessed against the adverse party. Bingham v. Montane Res. Associates, 133 Idaho 420, 425, 987 P.2d 1035, 1040 (1999). However, the Idaho Supreme Court has held that that the general entitlement to costs under I.R.C.P. 54(d)(1) does not override a valid agreement. Zenner v. Holcomb, 147 Idaho 444, 452, 210 P.3d 552, 560 (2009). Plaintiff requests the following discretionary costs for a total of $2,129.08: Mediation fees $1, Subpoena duces tecum $ service fees Document photocopy $22.44 charges Online legal research $ Postage $ Parking for hearings $2.00 Total $2, Plaintiff argues it is entitled to all its costs pursuant to the Association s Declaration Bylaws. Specifically, Article VII, 7.5 entitles the Association to recover all costs associated with bringing an Owner and the Owner s Lot into compliance with the Bylaws. Further, it cites Article VI, 6.2(b), which states Such expenditures shall include all court costs and reasonable attorneys fees and costs incurred in enforcing 9 See Def s Motion, p. 3 (Defendant objected to $2, in costs, which is the amount Plaintiff claims in discretionary costs). Page 4 of 10

5 any provision of these Bylaws or the Declaration. 10 Defendant argues that the discretionary costs should not be awarded because they are not exceptional. The Court finds there was binding contract between Defendant and Plaintiff that stipulated that all court costs be paid to Plaintiff during their enforcement of any provision of the Bylaws or the Declaration. Therefore, Plaintiff is entitled to all court costs, which includes discretionary costs. Defendant is required to pay $2, in discretionary costs. D. Attorney Fees As a general rule, The determination to award or not award attorney fees is committed to the discretion of the trial court. Foster v. Shore Club Lodge, Inc., 127 Idaho 921, 927, 908 P.2d 1228, 1234 (1995). When considering an award of attorney fees, the Court must look at the factors outlined in I.R.C.P. 54(e)(3). Rule 54(e)(3) does not require the district court to make specific findings in the record, only to consider the stated factors in determining the amount of the fees. When considering the factors, courts need not demonstrate how they employed any of those factors in reaching an award amount. Lettunich v. Lettunich, 145 Idaho 746, 750, 185 P.3d 258, 262 (2008). The bottom line in an award of attorney fees is reasonableness. Id. Reasonableness and other attorney fee determinations, are a discretionary matter for the trial court and are reviewed under an abuse of discretion standard. Sun Valley Potato Growers, Inc. v. Texas Refinery Corp., 139 Idaho 761, 769, 86 P.3d 475, 483 (2004). Plaintiff claims an award of attorney s fees pursuant to Idaho Rule of Civil Procedure 54(e)(1) and (5), Article VII, 7.5, and Article VIII, 8.1 of the Declaration, and Article VI, 6.2(b) of the Bylaws. Plaintiff requests $49, in Attorney Fees. The valid contract between the parties called for reasonable attorneys fees to be paid to the Association when enforcing any provision of the Bylaws or the Declaration. The Court has found Defendant to be the prevailing party in this manner, thus will award reasonable attorneys fees. Plaintiff does not argue against any of Defendant s assertions regarding I.R.C.P. 54(e)(3) factors. Plaintiff argues that attorneys fees are not reasonable because some information in the Affidavit of Christopher M. Tingey in support is redacted, which makes 10 Plaintiff s Memorandum of Costs and Attorneys Fees, p. 3. Page 5 of 10

6 it impossible to discern the true nature of the entry. 11 Defendant highlights approximately seventy notations, totaling $17,686.00, which he claims are not discernable 12 so should be disallowed. 13 Plaintiff opposed a mandatory reduction in fees for redacted portions 14 and, instead, argues redactions should be reviewed on a caseby-case basis. Plaintiff argues the general nature of the work performed is still revealed in the billing records supplied to the Court. 15 The Court finds the remaining attorneys fees are reasonable according to the IRCP 54(e)(3) factors 16 and only specifically addresses below the entries to which Defendant raised specific objects. 1. Reasonableness of redacted entries The Court is required to consider the factors enumerated in IRCP 54(e)(3) in order to determine attorneys fees. I.R.C.P. 54(e)(3). This requires the party claiming the attorneys fees provide the Court enough information to be able to conduct an analysis. Bailey v. Bailey, 153 Idaho 526, 531, 284 P.3d 970, 975 (2012) (quoting Sun Valley Potato Growers, Inc., v. Texas Refinery Corp., 139 Idaho 761, 769, 86 P.3d 475, 483 (2004)). The Court has found fees are properly denied where the party claiming them does not provide the information necessary to permit the court to evaluate all of the factors. Bailey v. Bailey, 153 Idaho 526, 531, 284 P.3d 970, 975 (2012). Although this Court does not presumptively believe redacted entries cannot be awarded, fees that the Court cannot attribute to Rodina s case will not be allowed. i. Redacted Entries The Court will not award Plaintiff attorney fees where the true nature of the work performed and the work s relation to Rodina s case cannot be determined due to 11 Rodina s Motion to Disallow Plaintiff s Request for an Award of Costs and Attorney Fees, p Rodina s Motion to Disallow Plaintiff s Request for an Award of Costs and Attorney Fees, p Rodina s Motion to Disallow Plaintiff s Request for an Award of Costs and Attorney Fees, p Plaintiff s Response to Rodina s Motion to Disallow Plaintiff s Request for an Award of Costs and Attorney Fees. 15 Plaintiff s Response to Rodina s Motion to Disallow Plaintiff s Request for an Award of Costs and Attorney Fees. 16 Although the court must consider the factors listed in Rule 54(e)(3) of the Idaho Rules of Civil Procedure when determining the amount to award in attorney fees, the court need not demonstrate how it employed any of the factors in reaching an award amount. In re Univ. Place/Idaho Water Ctr. Project, 146 Idaho 527, 545, 199 P.3d 102, 120 (2008) (citing Parsons v. Mutual of Enumclaw Ins. Co., 143 Idaho 743, 747, 152 P.3d 614, 618 (2007)). The court need not specifically address each of the factors, as long as the record indicates that it considered them all. Id. Page 6 of 10

7 redactions. The Court has been able to determine the nature of the work performed even though the entries are redacted so the Court does not find merit that the seventy billing entries are not discernable. However, many entries are redacted to the point that the Court cannot find the work reasonably relates to Rodina s case and the Court disallows the following billed amounts: DATE TIME BILLED EXPLANATION OF SERVICES 11/13/ $63.00 Telephone call with Nick Barber regarding: REDACTED; receive and review from Nick regarding: REDACTED; draft response 12/8/ $ Meet with BPRO regarding: REDACTED, telephone call with Nick regarding: REDACTED 12/15/ $63.00 Meet with TMJ regarding: REDACTED 1/3/ $31.50 Meet with BPRO regarding: REDACTED 1/5/ $ Meet with ANEL regarding: REDACTED, conference call with Nick and ANEL regarding: REDACTED; telephone call with message to Leann regarding: REDACTED; draft to Board regarding: REDACTED, receive and review from ANEL regarding: REDACTED 1/8/ $31.50 Receive and review form board members and Leann regarding: REDACTED 1/9/ $31.50 Receive and review from Board regarding: REDACTED 1/10/ $31.50 Receive and review from Board regarding: REDACTED 1/10/ $31.50 Receive and review from Board regarding: REDACTED 1/16/ $ Meet with AKK and ANEL regarding: REDACTED; telephone call with Nick regarding: REDACTED 1/16/ $63.00 Meet with AKK regarding: REDACTED 1/17/ $31.50 Meet with AKK and JRAN regarding: REDACTED 1/19/ $31.50 Telephone call with Nick regarding: REDACTED 1/29/ $63.00 Meet with AKK regarding: REDACTED 1/30/ $63.00 Meet with AKK regarding: REDACTED 1/31/ $92.00 Phone call with Beau regarding REDACTED; Research utility box for specific company. 2/2/ $ Review utility box subpoena issue. REDACTED. Research utility box. Visit site to ascertain type of utility service. Direct staff to send subpoena to telecommunications companies. 2/3/ $ Discuss REDACTED with Chris Tingey 2/19/ $63.00 Meet with AKAU regarding: REDACTED 2/19/ $ dialogue with Nick regarding: REDACTED; Page 7 of 10

8 receive and review from Nick to Board regarding: REDACTED; dialogue with Leann regarding: REDACTED 2/28/ $63.00 Receive and review from board members regarding: REDACTED; draft response to Mercedes regarding: REDACTED 3/2/ $94.50 Telephone call with Nick regarding: REDACTED 3/14/ $63.00 Receive and review from AKAU and JRAN regarding: REDACTED; telephone call with Nick regarding: REDACTED 3/26/ $63.00 Receive and review s from Mercedes and Nick regarding: REDACTED; draft response TOTALS 10.6 $3, ii. Entries which this Court finds do not relate to Rodina The Court also finds the following billed hours having nothing to do with Rodina s case about his fence: DATE TIME BILLED EXPLANATION OF SERVICES 3/5/ $ Research on Idaho Fish and Game enforcement process, discuss public information request with legal assistant. 3/5/ $94.50 Telephone call with AKAU regarding: research on poaching issue; telephone call with Nick regarding: REDACTED 3/8/ $ Correspond with attorney for Fish & Game concerning any warrant procedures and process for filing charges. Research applicable statutes, advise Chris Tingey 3/8/ $ Meet with AKAU regarding: search warrant on poaching charges; telephone call with message to Jeremy Evans regarding: searching court docket regarding: same; review rules regarding: same 3/8/ $50.00 Attempt to locate Warrant information for Jan Rodina. Research process, phone calls to Ada County Sheriff and Idaho Fish and Game TOTALS 3.25 $ iii. Duplicative billing The Court will not award Plaintiff attorney fees for duplicative billing. In this case, two attorneys requested fees for the Motion for Summary Judgment hearing and for Page 8 of 10

9 attending mediation. The Court finds only one s work was reasonable and allows the higher fee. Thus, the Court disallows the following billed amounts: DATE TIME BILLED EXPLANATION OF SERVICES 2/15/ $ Second chair at MSJ hearing 2/20/ $ Attend mediation, review strategy and weaknesses for trial TOTALS $2, iv. Clerical work The Court will not award Plaintiff attorney fees for clerical tasks. Thus, the Court disallows the following billed amounts: DATE TIME BILLED EXPLANATION OF SERVICES 1/8/ $30.00 Conference with CMT re: REDACTED; Download and compile documents from Association's website. 2/12/ $70.00 Extensive communication with FedEx Office regarding ordering poster boards of selected exhibits and shipping to Idaho 2/15/ $ Compile case law binder TOTALS 2.00 $ v. Total attorneys fees awarded Based on the foregoing, the Court disallows $6, of the $49, requested, and therefore awards $42, to the Plaintiff in attorney s fees. CONCLUSION The Court awards Plaintiff costs as a matter of right in the amount of $497.63; discretionary costs in the amount of $2,129.08; and attorney/paralegal fees in the amount of $42, The total award of $45, in costs and fees is awarded to Plaintiff. ORDERED Signed: 7/23/ :54 AM Lynn Norton District Judge Page 9 of 10

10 CERTIFICATE 0F SERVICE hereby July 23, 2018 certify that on, ed (served) a true and correct copy of the above document to the following: Christopher Tingey cmt@vf-iaw.com Brindee Collins idahob@vf-iaw.com Gary Neal James Colborn reception@idahorealestatelaw.com Kaleena Bluemer Kaleena@angstman.com CHRISTOPHER D. RICH Clerk 0f the Court Deputy Clerk Signed: 7/23/ :05 AM Page100f10