Little Mountains Enterprises, Inc. v. David Groom et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR AWARD OF ATTORNEYS FEES (127.00)

This case came to this court as a court side trial.   The court rendered its decision on December 6, 2011.   The plaintiff had made a claim for attorneys fees at the trial.   The court in its decision stated that “attorney's fees, if any, are to be awarded at a subsequent hearing, and that the request for attorneys fees were to be by written motion.”   If the parties were able to agree, there was no need for the hearing.

The motion for award of attorneys fees was filed on December 17, 2011 wherein the plaintiff requested attorneys fees in the sum of $22,522.50.   Thereafter, the defendant filed an Objection to the Motion for Award of Attorneys Fees dated January 13, 2012.   Thereafter, on January 17, 2012 at the court's request, the objection was made more specific and filed accordingly.   Thereafter, the plaintiff replied to the Objection on January 18, 2012.   The court requested the parties to attempt to resolve the matter prior to hearing.   They were unable to do so.   The court conducted a hearing.

It is clear that this ruling by the court is an all or nothing award.   The parties agree that the amount that was billed in the sum of $22,522.50 is not disputed.

The dispute is whether or not any attorneys fees should be awarded in this case.

The court found in its memorandum of decision that there was a breach of the contract, and an innocent misrepresentation which led to the court's award of $77,741.60.   The Contract, Exhibit 2 provides on Page 11, ¶ 37 cost of enforcement:  “in the event of any litigation brought to enforce any provision of this agreement, the prevailing party shall be entitled to recover its reasonable attorneys fees and court costs from the other party.”   Paragraph 42 on Page 12 of the Contract incorporates the Rider.   In ¶ 2 on Page 16 it sets forth “sellers represent and warrant that the premises consists of two building lots, each approved for a five bedroom single family dwelling.”

The court finds pursuant to ¶ 37 that there was litigation.   That it was brought to enforce the Contract provision which was ¶ 2 of the Rider, which Rider was incorporated into the agreement.   The plaintiff prevailed.   The amount of the attorneys fees is not disputed, therefore they are reasonable under the provisions.

The defendant argues that the applicable part of the contract is Article 6 on Page 2 and following.   The claim is that the damages thereunder are limited to an amount well below the current claim.   The court finds that the litigation in this matter was not over that provision in the contract, but rather the provision in the Rider as hereinbefore set forth.

Accordingly, the court rejects that claim.

Accordingly, the court finds that the attorneys fees are due and payable under the contract, and orders the defendant to pay the plaintiff's attorneys fees in the sum of $22,522.50.

SO ORDERED.

EDWARD KARAZIN,

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.