United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY United States District Judge.
before the Court is plaintiff Landmark Infrastructure Holding
Company LLC's motion for an award of attorneys' fees
and nontaxable costs, Doc. 197. For the following reasons,
the motion is granted in part.
case involves a purchase agreement between Landmark and
defendant R.E.D. Investments, LLC. The agreement provided that
Landmark would pay R.E.D. $902, 358.11 in exchange for the
right to receive base rents under a billboard lease and a
99-year easement over a portion of R.E.D.'s real
4 of the Purchase Agreement contained a “Representation
and Covenant” that “[R.E.D.] has not received
notice of a rent reduction by the billboard tenant under the
Billboard lease or notice of any fact, condition or
circumstance that would result in a rent reduction.”
However, the evidence showed that at the time the Purchase
Agreement was executed, R.E.D. and Van Stavern knew or had
reason to know that the billboard tenant under the lease,
Lamar Advertising, had requested or would be requesting a
9(e) of the Purchase Agreement provides that “[i]n any
action or proceeding brought to enforce any provision of this
Agreement, the prevailing party shall be entitled to an award
of its reasonable attorneys' fees and costs, whether
through arbitration or a court of competent
jurisdiction.” (Ex. 1, ¶ 9(e)).
case was tried before a jury beginning January 16, 2018.
Three claims were submitted to the jury: fraudulent
misrepresentation and negligent misrepresentation claims
against both Defendants, and a breach of contract claim
January 18, 2018, the jury returned a verdict in
Landmark's favor on the negligent misrepresentation claim
and assessed damages in Landmark's favor against both
Defendants in the amount of $381, 234.11. The jury also
returned a verdict in Landmark's favor on the breach of
contract claim and assessed damages in Landmark's favor
against R.E.D. in the amount of $156, 000.00.
now asks for $211, 704.74 in attorney fees against R.E.D.,
pursuant to Paragraph 9(e) of the Purchase Agreement. R.E.D.
does not object to the reasonableness of the rates charged by
Landmark's attorney, nor does it contest the actual hours
billed. It also tacitly concedes that Landmark is the
prevailing party on the contract claim. Instead, R.E.D.
claims that Paragraph 9(e) of the Purchase Agreement does not
authorize attorney fees under these circumstances because
Landmark's claim for breach of contract was not an action
to enforce the Purchase Agreement.
a contract provides for the payment of attorneys' fees
and expenses incurred in the enforcement of a contract
provision, the trial court must comply with the terms of the
contract and award them to the prevailing party.”
Doc Magic, Inc. v. Mortgage P'ship of Am.,
L.L.C., 729 F.3d 808, 812 (8th Cir. 2013) (quoting
Clean Uniform Co. St. Louis v. Magic Touch Cleaning,
Inc., 300 S.W.3d 602, 612 (Mo.Ct.App. 2009)). “A
‘prevailing party' is one who obtains a judgment
from the court, regardless of the amount of damages.”
Id. (quoting Brooke Drywall of Columbia, Inc. v.
Building Constr. Enters., Inc., 361 S.W.3d 22, 27
first question to be addressed is whether Landmark's
contract claim sought to “enforce” the Purchase
Agreement. R.E.D. claims it does not because it only seeks
damages for a breach of a term of the contract. The only case
cited in support of this proposition is McPherson
Redevelopment Corp., v. Shelton, 807 S.W.2d 203 (Mo Ct.
App. 1991), which R.E.D. acknowledges is “not exactly
on point.” Doc. 198, at 5. In that case the court held
that a condemnation became an action to enforce a contract
when the matter was settled by a written agreement.
McPherson did not hold, nor did it imply, that a
suit for a breach of contract was not an action to enforce
the contract. In contrast, Landmark cites Evans v.
Werle, 31 S.W.3d 489, 493 (Mo. App. W.D. 2000), where
the court awarded attorneys' fees to plaintiffs who sued
a contractor for failure to perform in a workmanlike manner
when a contractual provision provided for an award of
attorneys' fees “[s]hould either party . . . bring
suit . . . to enforce the terms hereof.” Considering
all the language in the Purchase Agreement as well as the
specific language in paragraph 4, the Court concludes that
Landmark's contract claim was one to enforce the
contract. Seeking damages for failing to comply with the
terms of a contract is enforcing the contract. See,
Webster's Ninth New Collegiate Dictionary, 412 (1988) (To
enforce means “to give force to” and “to
carry out effectively”). Awarding damages for breaching
a term of the contract “gives force to” the terms
of the contract.
also contends that any attorney fee award must reflect time
spent on the contract claim and not time spent on the
fraudulent and negligent misrepresentation claims. Landmark
was unsuccessful on the fraudulent misrepresentation claim
and the jury returned a different verdict for the negligent
misrepresentation claim than for the contract claim. However,
when claims are related and arise out of the same core of
operative facts, there will be substantial overlap, making it
difficult to parse the hours attributable to each claim.
See, e.g., Emery v. Hunt, 272 F.3d 1042,
1046 (8th Cir. 2001) (holding that, even if unsuccessful on
some claims, a prevailing party may be compensated for fees
incurred for the claim on which the party prevailed and
“related claims” that “involve a common
core of facts”); Nelson v. Shuffman, No.
06-674 JCH, 2011 WL 3099900, at *3 (E.D. Mo. July 25, 2011)
(“[B]ecause the claims were interrelated and
overlapping, the Court finds Plaintiffs' attorneys
‘devoted generally to the litigation as a whole, making
it difficult to divide the hours expended on a claim by claim
basis.'”); CGM Air Grp., LLC v. Chevron U.S.A.,
Inc., No. 07-00168, 2009 WL 1810743, at *2 (D. Nev. June
24, 2009) (“In this case, the Court finds that the
causes of action asserted in GCM's Second Amended
Complaint are so intertwined that it is impracticable to
apportion the fee award based on time incurred defending the
contract cause of action from the other remaining
there clearly was some time spent solely on the issue of what
damages were appropriate for the fraudulent misrepresentation
claim, as well as separate pleadings and jury instructions
for each claim. Because R.E.D. does not identify any entries
that reflect this additional time, and given the minor nature
of the overlap, the Court reduces the fee award by $4000,
which represents approximately twenty hours of time by lead
counsel. This is a rough estimate based on the Court's
experience during the case, ...