dissenting: I respectfully dissent from the majority’s conclusion that Snider’s failure to follow the procedural requirements for recovering appellate attorney fees bars his recovery for such fees. First, I would find that because American Family failed to raise this issue either in the trial court on remand of Snider v. American Family Mut. Ins. Co., No. 101,202, 2009 WL 2902588 (Kan. App. 2009) (unpublished opinion) (Snider I), or in a cross-appeal to the Court of Appeals in Snider v. American Family Mut. Ins. Co., 45 Kan. App. 2d 196, 244 P.3d 1281 (2011) (Snider II), this issue was not properly before the Court of Appeals in Snider II and is not properly before this court on petition for review. Further, even if the Court of Appeals properly considered this issue sua sponte in (Snider II), I would nevertheless find that Snider’s failure to file a motion for attorney fees pursuant to Supreme Court Rule 7.07 (2012 Kan. Ct. R. Annot. 66) in Snider I did not bar his claim for appellate attorney fees on remand. Instead, I would conclude as did Justice Six in his dissent in Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 269, 815 P.2d 550 (1991), that Rule 7.07(b) has no application where, as here, appellate attorney fees are specifically provided for by statute. Rather, Rule 7.07(b) applies only when appellate attorney fees are sought in discretionary situations.
*176 This issue was not properly before the Court of Appeals.
Preliminarily, I would not reach this issue as it was not raised by American Family either in the trial court on remand following Snider I or in American Family’s cross-appeal in Snider II.
As the majority points out, the Court of Appeals in Snider I reversed the district court’s decision and remanded with directions for the district court to enter summary judgment in favor of Snider and to “determine the amount of attorney fees to be awarded to Snider” under K.S.A. 40-908. Slip op. at 5; see 2009 WL 2902588, at *15. On remand, tire district court did exactly as mandated, entering judgment and awarding attorney fees and costs to Snider.
And significantly, although on remand Snider sought both attorney fees for work performed in the district court and for work performed on appeal of Snider I, American Family did not object to Snider’s request for appellate attorney fees. Instead, American Family objected only to the amount of appellate attorney fees sought by Snider. Similarly, the district court did not find that it was precluded from considering appellate attorney fees. Instead, it found only that Snider’s request for appellate fees was unreasonable as to the amount of the request.
Further, although Snider appealed the trial court’s ruling regarding appellate attorney fees to the Court of Appeals in Snider II, American Family did not cross-appeal from the district court’s consideration of appellate attorney fees or suggest that Snider was precluded from seeking attorney fees based on his failure to file a motion for fees in the appellate court in Snider I. Instead, American Family waited until filing its response brief in Snider II to make that argument.
Despite this failure, the Court of Appeals in Snider II addressed the issue and found Snider’s failure to file a motion for attorney fees under Rule 7.07 in Snider I precluded the district court’s consideration of appellate attorney fees on remand. The majority opinion compounds this error by refusing to consider American Family’s failure to raise the issue below or failure to cross-appeal. Instead, the majority simply transfers responsibility for these omissions to Snider for failing to raise the waiver of the preservation issue in his petition for review.
*177Concededly, the majority relies on Evans for the proposition that “[cjivil appellate attorney fees are to be determined only by the appellate court hearing the appeal” and that a party requesting appellate attorney fees must therefore timely file a Rule 7.07(b) motion. Slip op. at 11 (citing Evans, 249 Kan. at 265-66).
As discussed below, I do not agree with Evans’ overly broad statement regarding consideration of appellate attorney fees. But even given that broad holding, Evans did not consider whether the failure to file a procedural Rule 7.07(b) motion constitutes a jurisdictional bar for subsequent claims for statutory attorney fees. Nor can I agree with the majority’s conclusion that Evans put Snider “on notice” that he was required to file a 7.07(b) motion to recover appellate attorney fees in Snider I. Slip op. at 14. In fact, this court in Evans remanded the case to the Court of Appeals for a determination of appellate attorney fees even after concluding that the plaintiff failed to comply with Rule 7.07. 249 Kan. at 265-66.
Because American Family failed to challenge the district court’s consideration of appellate attorney fees on remand of Snider I and failed to cross-appeal that consideration in Snider II, I would find that tire Court of Appeals improperly considered whether Snider’s failure to file a Rule 7.07(b) motion precluded his claim for appellate attorney fees for Snider I.
Snider toas not required to file a Rule 7.07 motion before seeking statutory attorney fees on remand.
Even if American Family had properly raised the issue, I would nevertheless find that Snider was not barred on remand of Snider I from seeking appellate attorney fees as specifically permitted by K.S.A. 40-908.
First, I agree with Snider that the statute specifically contemplates that a fee applicant under K.S.A. 40-908 who did not prevail in district court must first obtain a judgment before being awarded attorney fees, including appellate attorney fees. K.S.A. 40-908 (“[I]n all actions ... in which judgment is rendered against any insurance company. . . the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action including proceeding upon appeal.” [Emphasis *178added.]). Simply stated, because Snider did not prevail in the district court, no judgment was rendered and no fees could be awarded until after the Court of Appeals reversed the judgment and remanded to the district court for entry of judgment. Thus, it was entirely appropriate for Snider to seek appellate attorney fees in the district court after a judgment was entered on remand.
The majority seeks to reconcile this language with its result by pointing out that under the “mandate rule,” any decision on attorney fees rendered by the Court of Appeals would be controlling in, and a part of, the district court judgment on remand. While I do not necessarily disagree with the majority’s conclusion, I do not agree with its corresponding implication—i.e., that filing a Rule 7.07 motion on appeal and having an appellate court include appellate attorney fees in the mandate is the only way in which a district court may comply with the statute’s directive to award appellate attorney fees after judgment. Instead, I would hold that nothing about K.S.A. 40-908 or Rule 7.07(b) precludes a party who did not prevail in the district court from seeking consideration of appellate attorney fees following remand and entry of judgment by tire district court.
Relying on Evans, the majority concludes that appellate attorney fees can only be decided by an appellate court after a Rule 7.07 motion. But I would find, as did two dissenting justices in Evans, that Rule 7.07(b) was intended only to formalize the practice which had developed in the appellate courts for awarding attorney fees when appellate attorney fees were not statutorily specified:
“The phrase [in K.S.A. 40-256] ‘including proceeding upon appeal’ was added by the legislature in 1967. L. 1967, ch. 257, § 1.
“The majority opinion discusses Rule 7.07 (1990 Kan. Ct. R. Annot. 37).
“Rule 7.07 was amended in 1989 to add current subsection (b) relating to the award of attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees. Prior to the 1989 amendment, subsection (b) addressed frivolous appeals only.
“Before the Supreme Court’s 1989 amendment to Rule 7.07, the Court of Appeals had held in Vogel v. Haynes, 11 Kan. App. 2d 454, 457-58, 730 P.2d 1096, rev. denied 240 Kan. 806 (1986), and in Stafford v. Karmann, 2 Kan. App. 2d 248, 252, 577 P.2d 836 (1978), that it had authority on appeal to award fees for appellate work to carry out the intent of the statute involved in each case. *179Karmann related to mandatory awarding of fees in automobile negligence actions under what is now K.S.A.1990 Supp. 60-2006. Haynes concerned mandatory awarding of fees under K.S.A. 61-2701 et seq., the Kansas Small Claims Procedure Act.
“K.S.A.1990 Supp. 60-1610(b)(4) relates to costs and fees in domestic actions. Under that statute, the trial court may award attorney fees, in its discretion, based on justice or equity. Although attorney fees were requested in In re Marriage of Arndt, 239 Kan. 355, 357, 719 P.2d 1236 (1986), we held the appeal (involving a property settlement agreement in a divorce case) was not frivolous and, consequently, under Rule 7.07(b) attorney fees for services on appeal could not be awarded.
“In my view, the 1989 amendment to Rule 7.07 was effected to clarify and authorize a procedure for attorney fees for appellate work in discretionary situations.
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“The legislature, under the American rule, has provided in K.S.A. 40-256 for attorney fees in certain actions against insurance companies. K.S.A. 40-256 was specifically amended in 1967 to provide for appellate fees.
“I would follow the statute and shorten the trip for the parties with a one-stop disposition at the trial court level.” 249 Kan. at 268-69 (Six, J., dissenting).
I would conclude, as did Justices Six and Lockett in Evans, that when a statute specifically provides for appellate attorney fees, the legislature did not intend to require the filing of a Rule 7.07(b) motion or a complicated “post-appeal travel schedule” related to attorney fees. 249 Kan. at 268 (discussing “unique double remand” procedure developed by the majority for consideration of appellate attorney fees).
Instead, in K. S .A. 40-908, the legislature has provided for a “one-stop” shop in the district court for attorney fees. See 249 Kan. at 269. We should permit Snider to take advantage of that opportunity, without creating roadblocks and procedural hurdles along the way. This simplified approach would give effect to the statutory language of K.S.A. 40-908 and would not do harm in those cases in which attorney fees are discretionaxy rather than mandatory, requiring filing of a Rule 7.07(b) motion.
Johnson, J., joins in the foregoing dissent.