DIAMOND v. MIDWEST AGRIC. WAREHOUSE CO., 682 N.W.2d 82 (Iowa App. 2004)

DEAN DIAMOND, Plaintiff/Counterclaim Defendant-Appellee, v. MIDWEST AGRICULTURE WAREHOUSE COMPANY, d/b/a UNITED AGRI PRODUCTS MN-IA, and CONAGRA, Defendants/Counterclaimants-Appellants.

No. 4-114 / 03-0818Court of Appeals of Iowa.
Filed March 10, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

Appellants challenge an order of the district court overruling their application for attorney fees and costs. REVERSED ANDREMANDED.

Kevin Visser and Lisa Stephenson of Moyer Bergman, P.L.C., Cedar Rapids, for appellant.

Dean Diamond, Nashua, appellee pro se.

Considered by Huitink, P.J., and Vogel and Mahan, JJ.

MAHAN, J.

Appellants challenge an order of the district court overruling their application for attorney fees and costs. We reverse and remand.

Background Facts and Proceedings.

This case was extensively litigated at the district court level. Following a three-day bench trial, the district court dismissed Dean Diamond’s claims and entered judgment for Midwest Agriculture Warehouse Company d/b/a United Agri Products MN-IA and Conagra (Midwest Ag) on their counterclaim in the sum of $134,654 with interest and costs.

Thereafter, Midwest Ag filed an application to recover attorney fees and expenses. This application was based on a “Credit Application and Agreement” providing for the same and signed by the parties. Diamond did not resist this application in writing but did address it at the hearing. The district court overruled the application.[1] The court concluded any claims for attorney fees would not be the property of Midwest Ag. Midwest Ag appeals. Diamond has not filed a responsive brief.

Attorney Fees and Expenses.

The appellate court reviews the district court’s judgment on an award of legal fees for correction of errors at law. Gabelmann v. NFO, 606 N.W.2d 339, 342 (Iowa 2000). Iowa Code section 625.22 (2001) provides, in relevant part:

When judgment is recovered upon a written contract containing an agreement to pay an attorney’s fee, the court shall allow and tax as a part of the costs a reasonable attorney’s fee to be determined by the court.

Our supreme court has stated that a district court may award attorney fees where a contract contains an agreement providing for such an award. Berryhill v. Hatt, 428 N.W.2d 647, 657 (Iowa 1988). Paragraph three of the “Credit Application and Agreement” entered into between Diamond and Midwest Ag contains such a provision. It is clear that such an award would properly belong to Midwest Ag.

We conclude the district court erred by failing to give recognition to this provision in the “Credit Application and Agreement.” We further conclude this matter should be remanded to the district court for a determination on the amount of attorney fees and expenses that should be awarded to Midwest Ag.

REVERSED AND REMANDED.

[1] The district court noted the court reporter in the case had left his employment and moved to Minnesota. Therefore, a transcript of the trial was unavailable. The district court also acknowledged its own notes were missing and presumably lost. The court attempted to recall and reconstruct the events of the trial by reference to the court file and previous rulings.