The Recovery of Attorney Fees in Utah: a Procedural Primer [1] for Practitioners - Part I
| Publication year | 1996 |
| Pages | 10 |
| Citation | Vol. 9 No. 10 Pg. 10 |
James E. Magleby, J.
I. INTRODUCTION
In 1984, the University of Utah Law Review published a symposium[2] which summarized the state of Utah law[3] on the recovery of attorney fees[4] which contained a brief discussion of the procedural aspects of the process.[5] Although Utah law on the subject has developed substantially since 1984, the procedural aspects of the recovery of attorney fees are often overlooked by courts and practitioners alike.[6] Accordingly, this article attempts to reduce the confusion by providing an overview of the procedural aspects of pleading and recovering attorney fees in Utah and surviving appellate challenge to the award.[7]
II. PROCEDURAL REQUIREMENTS
a. Pleading
Although it may appear obvious, practitioners have, on occasion, failed to request an award of attorney fees in the pleadings. Such an omission can have dire consequences, as a party who fails to raise the issue of attorney fees until late in the proceedings may be precluded from recovering fees at all. This position was first taken in Leger Construction, Inc. v. Roberts, Inc.[8] where the court declined to award attorney fees because the statute under which fees were sought was not pled in the original pleadings.[9]The court noted that, at least with regard to a request for attorney fees under statutory authority, "one entitled [to attorney fees under a statute], in fairness, should make his claim known in his pleadings."[10]Although this statement was couched as mere observation, [11] the rule in practice is that attorney fees which are not requested in the pleadings will not be awarded.[12]
However, if the issue of attorney fees is raised before the trial court and the other party placed on notice, Utah courts appear willing to interpret the rules of procedure liberally to allow a fee award. In Palombi v. D.C. Builders, [13] the Utah Supreme Court upheld an award of attorney fees under the mechanics hen statute, although the issue had not been raised in the original complaint.[14] In doing so, the Supreme Court ruled:
The fact that there was no specific pleading in that regard does not preclude such an award. It is indeed important that the issue be raised and that the parties have full opportunity to meet it. But when that is done, our rules indicate that there shall be liberality of procedure to reach the result which justice requires. Rule 1(a), [Utah Rules of Civil Procedure], provides that they shall be "liberally construed" to secure a "just . . . determination of every action and Rule 54(c)(1) provides "... every final judgment shall grant the relief to which the party ... is entitled, even if the party has not demanded such relief in his pleadings.[15]
Other rules have been construed in similar manner to reach similar results. Rule 8(e) of the Utah Rules of Civil Procedure contains the "notice pleading" rule which provides that "no technical forms of pleadings or motions are required."[16] This rule has been applied to allow recovery of attorney fees where the opposing party was "clearly on notice" that fees were sought, albeit by imperfect pleading.[17] Trial courts have discretion to take evidence on attorney fees at trial under Utah Rule of Civil Procedure 15(b), [18] even if the parties did not raise the issue in the pleadings.[19] Nor do the pleadings limit the amount of fees recoverable, [20] unless they are awarded pursuant to a default judgment.[21]
From these cases, it appears that where a party has failed to request attorney fees in the initial pleadings, as long as "the issue be raised and . . . the parties have full opportunity to meet it, "[22]particularly where the opposing party is "clearly on notice, "[23] Utah courts will probably allow recovery of attorney fees despite a failure to conform to a specific pleading format. Therefore, a practitioner who has inadvertently failed to plead attorney fees, or is not entitled to do so until the case has progressed, [24] should (1) take steps to bring the issue before the court and (2) place opposing counsel on notice that fees are an issue.
In pleading attorney fees, practitioners must decide the grounds upon which attorney fees will be sought, whether they be statutory, contractual or equitable.[25] Next, the practitioner must decide the appropriate method for pleading the grounds upon which attorney fees are sought. The practice in Utah varies, with some preferring to request attorney fees in the prayer for relief, rather than as separate claim.[26] Intuitively, this may make sense as attorney fees are usually awarded after the conclusion of the lawsuit, [27] in temporal proximity to an award of damages. Another approach is to plead attorney fees as a separate claim.[28] This method seems particularly appropriate where the request is based upon a statute or other rule which requires the party requesting fees to produce proof on discrete issues.[29]
b. Burden of Proof
Once recovery of attorney fees is allowed, [30] "[a] party requesting an award of attorney fees has the burden of presenting evidence sufficient to support the award."[31] A party which does not provide such evidence, even if indisputably entitled to recover attorney fees, may not recover at all, [32] even if there is no disputed issue of material fact.[33]
Various types of evidence may be sufficient to meet this burden. Generally, "[sufficient evidence should include the hours spent on the case, the hourly rate charged for those hours, and the usual and customary rates for such work."[34] This evidence should probably be submitted by affidavit, [35] although testimony[36] by counsel for the party requesting attorney fees is allowed.[37] Practitioner should beware reliance solely upon their own opinion, however, as "[e]ven [if the] evidence is undisputed, the trial judge [is] not necessarily compelled to accept such self-interested testimony whole cloth and make... an award."[38]
The simplest way for a practitioner to meet the initial evidentiary burden is to file an affidavit in compliance with Rule 4-505 of the Utah Code of Judicial Administration. Rule 4-505, designed "[t]o establish uniform criteria and a uniform format for affidavits in support of attorney[] fees, "[39] provides:
1) Affidavits in support of an award of attorneys fees must be filed with the court and set forth specifically the legal basis for the award, the nature of the work performed by the attorney, the number of hours spent to prosecute the claim to judgment, or the time spent in pursuing the matter to the stage for which attorney [] fees are claimed, and affirm the reasonableness of the fees for comparable legal services.
(2) The affidavit must also separately state hours by persons other than attorneys, for time spent, work completed and hourly rate billed.[40]
Although Rule 4-505 does not require the inclusion of an hourly rate for each attorney working on the case, [41] such information should probably also be included as "an hourly rate would likely be helpful to the court.[42]
Once the initial burden of production is met, opposing counsel has the opportunity to investigate the evidence supporting the claimed fees. Although the procedure is meant to be informal, practitioners opposing an attorney fee award may challenge the evidence, and the trial court is obligated to act "so that procedural fairness will be accorded one who opposes a requested award."[43] The Supreme Court has summarized its position regarding the nature of this process: Although we do not intend to turn fee award determination into satellite litigation with full scale discovery, thereby increasing the overall cost of litigation, an adversary-type mechanism through which an opponent to a fee request can examine the accuracy of factual assertions underlying the request must be available. Usually, it will be sufficient if the opponent...
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