Salmon v. Davis County

916 P.2d 890, 289 Utah Adv. Rep. 3, 1996 Utah LEXIS 25, 1996 WL 193190

• Court: Utah Supreme Court
• Decided: April 22, 1996
• Docket: 940315
• Status: Published

Opinions

DURHAM, Justice:

David L. Salmon appeals from á judgment awarding him attorney fees pursuant to Utah Code Ann. § 63-30a-2 for the successful defense of two misdemeanor criminal charges. Salmon contends that the trial court abused its discretion in denying him the full amount of attorney fees incurred in his defense. Although the majority does not join my opinion on this issue, I would agree with Salmon and reverse. Salmon also asserts that the trial court erred in holding that he was not entitled to recover the attorney fees necessarily incurred in litigating his right to attorney fees under Utah Code Ann. § 63-30a-2. A majority of this court agrees on this issue, and thus we reverse and remand.

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From March 4,1986, until March 16,1993, Salmon was employed as a deputy sheriff by the Davis County Sheriffs Department. For approximately five years prior to this, Salmon was employed as a corrections officer for the State of Utah. On January 15, 1992, Salmon was charged in the Second Circuit Court of Davis County with two class B misdemeanor counts of assault. Both counts arose out of actions allegedly taken by Salmon in the course of his employment.

Salmon retained Elizabeth T. Dunning and Mary J. Woodhead to represent him. The first count went to trial before a jury on March 9,1992, and the second count went to trial before a jury on April 24, 1992. Each trial lasted one day, and both juries found Salmon not guilty. Davis County Attorney Melvin C. Wilson represented the State at both trials.

On March 13, 1992, counsel for Salmon made a written request, pursuant to Utah Code Ann. § fiS-SOa-^,¹ to Davis County, asking the County to pay Salmon’s attorney fees and costs incurred in the successful defense of the first information. The County did not respond. On March 27,1992, Salmon moved the circuit court for an award of attorney fees and costs incurred in the defense of the first information.

Similarly, on May 7, 1992, Salmon’s counsel made a written request to Davis County, asking the County to pay Salmon’s attorney fees and costs incurred in successfully defending against the second information. Again the County did not respond. On June 10, 1992, Salmon moved the circuit court for an award of attorney fees and costs incurred in defending the second information. On June 22, 1992, the circuit court heard oral argument on Salmon’s motions. The court denied the motions without prejudice on the grounds that the County had not been made a party and that an action for award of attorney fees and costs pursuant to section 63-30a-2 could only be brought in district court.

On June 30, 1992, Salmon filed a request for fees and notice of claim with the County. Both before and after this date, Salmon’s counsel suggested to the County the possibility of negotiating a resolution of the fee dispute. Salmon’s counsel also proposed submitting the dispute to the Utah State Bar for binding arbitration. In January 1993, the County responded with a letter stating that although it appeared that the statute entitled Salmon to fees, the amount he claimed was unreasonable and they could not negotiate a settlement without a court hearing. The letter further recommended that Salmon file a complaint to obtain a judicial ruling on the reasonableness of fees sought.

On February 2, 1993, Salmon filed a complaint in the Second District Court asking for his attorney fees pursuant to section 63-30a-2. In its answer, the County denied liability to Salmon for attorney fees and costs. On October 13,1993, both parties stipulated that pursuant to section 63-30a-2, Salmon was entitled to payment of his reasonable attorney fees and costs incurred in the defense of the two informations and that the hours reflected on the invoices submitted by Dunning were actually spent in defense of the infor-mations. The County did not agree, however, that all hours spent were necessary and reasonable for the defense of the informa-tions.

On October 13, 1993, Salmon moved for summary judgment, arguing that his actual attorney fees and costs were reasonable and necessarily incurred. Davis County opposed Salmon’s motion, arguing that attorney fees based upon a flat rate for a misdemeanor should not exceed $2,000 for both cases and that attorney fees based upon an hourly rate should not exceed $6,674.85 for both cases. Following oral argument on Salmon’s motion, the trial judge ruled that whereas “[m]ost attorney’s fee agreements in criminal cases do have a ceiling or a maximum,” plaintiffs agreement for attorney fees in this case set no ceiling on the amount of fees that could be incurred. The trial court then ruled that in this case, a reasonable attorney fee “ranges from $1,200.00+ to $22,000.00 + .” The trial court then concluded, “Looking at the entire situation: the type of trials involved; the issues involved; the seriousness of the issues; the difficulty of the issues; the novelty of the issues; the hours involved; and the results of the trial; the court is satisfied that $7,500 would be a reasonable attorney’s fee.” This amount was considerably less than the amount of attorney fees Salmon actually incurred in defending the two informations, specifically, $16,532.

The trial court also ruled that Salmon was not entitled to attorney fees incurred in bringing the action to recover fees pursuant to section 63-30a-2. The court reasoned, first, that Salmon was not the prevailing party because “the court’s ruling is substantially less than what the plaintiff requested and considerably closer to what the defendant requested” and, second, that there is no statutory or case law that allows for an award of attorney fees incurred in bringing a suit to collect attorney fees.

Salmon appeals. He contends that (a) the trial court’s ruling is not supported by the evidence, and (b) section 63-30a-2 provides a basis for awarding attorney fees necessarily incurred in litigating to recover fees allowed under the statute.

II

Historically, this court has generally reviewed a trial judge’s decision on the issue of attorney fees for abuse of discretion. See, e.g., Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988). In light of our opinion in State v. Pena, 869 P.2d 932, 939 (Utah 1994), however, I clarify that the reasonableness of an award of attorney fees ordinarily presents a question of law, with some measure of discretion given to the trial court in applying the reasonableness standard to a given set of facts. See id. In the usual context of fee award decisions, “appellate deference is owed to the trial judge who actually presided over the proceeding and has first-hand familiarity with the litigation.” Utah Dep’t of Social Servs. v. Adams, 806 (Utah Ct.App.1991). Nevertheless, this case is different from most attorney fee cases in that the circuit court judge who heard Salmon’s two misdemeanor trials did not make the fee award decision. Instead, the fee award decision was made by a district court judge who had before him only a written record and oral argument. Therefore, this court has before it everything relied upon by the court below. Accordingly, there is no justification for any deference to the trial court because it was not advantaged in any way in the fact-finding process. With this standard in mind, I now turn to Salmon’s contentions.

Salmon argues that the trial court’s award of less than the amount of attorney fees sought is not supported by the evidence. This court has held, “An award of attorney fees must be based on the evidence and supported by findings of fact.” Cottonwood Mall Co. v. Sine, 830 P.2d 266, 268 (Utah 1992); accord Dixie State Bank, 764 P.2d at 990. A party requesting an award of attorney fees has the burden of presenting evidence sufficient to support the award. Cottonwood Mall, 830 P.2d at 268. 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. Id.

Salmon presented adequate evidence to meet this burden. He submitted the affidavits of Elizabeth T. Dunning, his counsel throughout the criminal proceedings, and the expert affidavits of David Bert Havas and Rodney G. Snow, experienced criminal defense attorneys. Dunning’s affidavit presented as exhibits the detailed invoices that she submitted to Salmon showing each occasion on which work was performed, the nature of the work, the amount of time spent on each occasion, the attorney or other law firm employee performing the work, and the hourly rate charged for the respective employee. The end of each invoice contains a calculation of the total hours and the total fees for those hours. In addition, each invoice shows the total costs incurred and a breakdown of those costs. The County stipulated that the hours reflected on the invoices represent time “actually spent in defense of the informations.” With this evidence, Salmon met the initial evidentiary burden required for an award of requested attorney fees.

The next issue is whether the fees Salmon incurred were reasonable. See Cottonwood Mall, 830 P.2d at 269 (stating that attorney fee award must be reasonable). This court has set out several factors which trial courts should consider in determining whether the requested attorney fees are reasonable. Those factors include, but are not limited to,

“the difficulty of the litigation, the efficiency of the attorneys in presenting the case, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality for similar services, the amount involved in the case and the result attained, and the expertise and experience of the attorneys involved.”

Id. at 269 (quoting Cabrera v. Cottrell, 694 P.2d 622, 625 (Utah 1985)).

Salmon submitted evidence establishing that in light of the various reasonability factors, he was entitled to the full amount of attorney fees he requested. Both Havas and Snow testified by affidavit that they had reviewed Dunning’s affidavit, the legal invoices, and the memorandum in support of Salmon’s motion for summary judgment, which included a detailed description of the work done in the circuit court. Both witnesses opined that their review of the specific facts and circumstances of Salmon’s case indicated that the amounts charged and requested were reasonable and necessary. Both attorneys testified that they were familiar with rates customarily charged in this area and then went on to address why specific tasks performed by Salmon’s counsel were necessary and reasonable in this case. In sum, I would conclude that Salmon submitted evidence sufficient to support an award of attorney fees in the amount he requested.

The County, in turn, failed to offer any evidence to rebut Salmon’s showing and thereby support an award for less than the amount Salmon requested. Although the County argued below that certain fees should be rejected or reduced, the County failed to submit any evidence to support these arguments.

Although the County offered affidavits from four practicing attorneys, Melvin C. Wilson, Glen T. Celia, William J. Albright, and Terry L. Cathcart, it is my opinion that their testimony did not provide a basis for the trial court’s reduction in the amount of fees Salmon showed was reasonable. We have held that expert affidavits must include the specific facts supporting the expert’s conclusion. Butterfield v. Okubo, 831 P.2d 97, 104 (Utah 1992). Of the attorneys who submitted affidavits for the County, the only attorney who stated that he had any knowledge of the facts at issue in this case was Wilson, an attorney for Davis County. Consequently, Wilson’s affidavit represents the only evidence offering any substantial support for the County’s proposition that the requested fees were unreasonable.² Wilson’s testimony, however, does not address specific facts except to conjecture that the work related to Salmon’s motion to dismiss and motion in limine was unnecessary because “[h]ad Defendant requested a severance of the two counts [Wilson] would have concurred in the severance.” Furthermore, the cursory nature of the analysis set forth in Wilson’s affidavit undermines the credibility and reliability of the testimony. For example, Wilson summarily stated that on the basis of his experience as a defense attorney in Davis County, he believes “a reasonable fee for the defense of a Class B misdemeanor in a one day trial is $750.00-$l,000.00.” Not only is this statement unrelated to the facts of this case, but it is also inconsistent with statements the County made elsewhere in its motion for summary judgment which assert that the highest reasonable fee for defending the first information is $3,665.02 and the highest for the second is $3,009.83. The testimony of the other attorneys is likewise of little help. In their affidavits, Celia, Al-bright, and Cathcart made only conclusory statements as to what they normally charge for a misdemeanor jury trial. Standing alone, such evidence has little relevance to the facts and fees at issue in this particular case. The County also points out that it submitted color-coded invoices of Salmon’s counsel to indicate which fees the court should accept, reject, and reduce. These submissions are nothing more than tendentious argument. To support its arguments, the County should have submitted acceptable expert testimony to the effect that fees for such services would be unreasonable.³

I would conclude that the record contained insufficient evidence to support the trial court’s award of less than the amount of attorney fees Salmon requested. The trial court made no findings to support its reduction, except for the “finding” that most cases have a cap. This finding, in turn, is likewise unsupported by the record. The County contends that this court can properly take judicial notice that most criminal eases involve ceilings or máximums on fees and that the district court did not err in observing that “most attorney’s fee agreements in criminal cases have a ceiling or maximum.” 1 would agree only to the extent that the limitation for reimbursement in this case is defined by what constitutes reasonable and necessary attorney fees. In other words, the ceiling is set by the statute itself. See Utah Code Ann. § 63-30a-2. As discussed above, the County failed to submit any evidence rebutting Salmon’s showing that the fees requested were reasonable and necessary. Accordingly, I would find that Salmon is entitled to an award of the full amount requested.

Ill

This author’s disposition of Salmon’s second argument — that he is entitled to an award of attorney fees necessarily incurred in litigating to recover the fees allowed by Utah Code Ann. § 63-30a-2 — is supported by a majority of this court. The proper construction of section 63-30a-2 is a question of law. World Peace Movement v. Newspaper Agency, 879 P.2d 253, 259 (Utah 1994).

Salmon contends that the trial court erred in holding that it could “find no statutory or case law that allows for an award of attorneys fees for having to bring a suit to collect attorneys fees.” Salmon reasons that most statutes which provide for payment of attorney fees to a prevailing party do not explicitly state that fees incurred in seeking fees can be recovered, yet such statutes are uniformly interpreted to include reimbursement for the time incurred in preparing and litigating fee applications. The County, on the other hand, argues that the phrase “necessarily incurred” is limiting language placed in section 63-30a-2 to limit the award of attorney fees to work related directly to criminal defense. In light of our ease law addressing attorney fees and equitable recovery, we are not persuaded that “necessarily incurred” is so limiting as to preclude an award of fees for the work done to obtain reimbursement of fees.

This court has interpreted attorney fee statutes broadly so as to award attorney fees on appeal where a statute initially authorizes them. For example, in First Southwestern Financial Services v. Sessions, 875 P.2d 553, 556 (Utah 1994), we considered the Utah deficiency judgment statute which provides the prevailing party costs and fees incurred in bringing an action under the statute, see Utah Code Ann. § 57-1-32, and concluded that costs and attorney fees incurred on appeal should likewise be allowed under the statute. Similarly, in Richards v. Security Pacific National Bank, 849 P.2d 606, 612 (Utah Ct.App.1993), the court of appeals interpreted the provision for attorney fees under the Utah Mechanic’s Liens Statute. The statute provided that in any action brought to enforce a lien, the successful party would be entitled to reasonable attorney fees. See Utah Code Ann. § 38-1-18 (1988).⁴ The court of appeals concluded that an appeal from a suit brought to enforce a lien also qualifies as part of “an action” for the purposes of the statute. Richards, 849 P.2d at 612.

Although this court has not directly addressed the issue of whether fees incurred in recovering fees allowed under a statute should also be awarded pursuant to the statute, we agree with the rationale articulated in American Federation of Government Employees, AFL-CIO, Local 3882 v. Federal Labor Relations Authority, 994 F.2d 20 (D.C.Cir.1993):

Federal courts have repeatedly recognized that the unavailability of “fees for fees” could render fee-shifting provisions impotent, thereby reducing the effectiveness of the underlying statutes.... [A]n award of “fees for fees” is not merely a remote descendant of the underlying action from which it derives. Rather, it is an integral aspect of the statutory scheme on which the underlying claim is based.

Id. at 22; see also Commissioner, INS v. Jean, 496 U.S. 154, 163-64, 110 S.Ct. 2316, 2321-22, 110 L.Ed.2d 134 (1990); Prandini v. National Tea Co., 585 F.2d 47, 53 (3d Cir.1978); Souza v. Southworth, 564 F.2d 609, 614 (1st Cir.1977). This rationale is consistent with our prior case law awarding attorney fees for appeals where attorney fees are initially authorized by statute. See First Southwestern Financial Servs., 875 P.2d at 556.

Analogously, we have recognized that a contractual obligation to pay attorney fees incurred in enforcing a contract should also include fees incurred on appeal. In Management Services v. Development Associates, 617 P.2d 406, 408-09 (Utah 1980), we stated that the purpose of an attorney fees provision is to indemnify the prevailing party against the necessity of paying attorney fees and thereby enable him to recover the full amount of the obligation. Id. at 409. In accordance with this purpose, we concluded that “a provision for payment of attorney’s fees in a contract includes attorney’s fees incurred by the prevailing party on appeal as well as at trial, if the action is brought to enforce the contract.” Id. Similarly, the court of appeals recently ruled that the prevailing party in a dispute over a contractual attorney fees provision was entitled, not only to attorney fees on appeal, but also to the fees it incurred establishing the reasonableness of the fees for which it was entitled to be indemnified. James Constructors v. Salt Lake City, 888 P.2d 665, 674 (Utah Ct.App.1994).

The attorney fees at issue in this case, although they are permitted pursuant to statute instead of contract, are very similar in purpose — the reimbursement of attorney fees makes the vindicated public employee whole. Consequently, if a vindicated employee is required to expend attorney fees to recover the original fees to which he was entitled, the cost of these subsequent fees must also be reimbursed. Any other interpretation would eviscerate the purpose of the statute. In accordance with this rationale, we conclude that Salmon is entitled to reasonable fees and costs necessarily incurred in recovering the fees and costs allowed under section 63-30a-2.

We thus reverse the district court as to the issue of recovery of attorney fees incurred in seeking fees and remand for a determination and award of reasonable attorney fees and costs incurred in the district court proceeding and in the appeal to this court.

1 . Section 63-30a-2 provides:

If a state or grand jury indicts or if an information is filed against [a public] officer or [a public] employee, in connection with or arising out of any act or omission of that officer or employee during the performance of his duties, within the scope of his employment or under color of his authority, and that indictment or information is quashed or dismissed or results in a judgment of acquittal, unless the indictment or information is quashed or dismissed upon application or motion of the prosecuting attorney, that officer or employee shall be entitled to recover from the public entity reasonable attorneys’ fees and court costs necessarily incurred in the defense of that indictment or information.

See also Utah Code Ann. § 63-30a-l(l) (defining “officer" and "employee").

2 . This author notes that it may have been improper for Wilson to submit his affidavit and continue as counsel for the County. Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1065 (Utah 1991); see also Utah Rule of Professional Conduct 3.7(a) (prohibiting a lawyer from acting "as advocate at a trial in which the lawyer is likely to be a necessary witness"). Although Wilson’s affidavit is not ipso facto inadmissible, "we deem it generally inadvisable for members of the bar to testify in litigation where they personally represent a party.” Watkiss & Campbell, 808 P.2d at 1066. Had Salmon objected to Wilson’s continuing representation, Wilson might have been disqualified. As for Dunning's testimony, it was not inappropriate because rule 3.7 includes an exception for testimony relating to the nature and value of legal services rendered in the case by the lawyer or her firm. Utah Rule of Professional Conduct 3.7(a)(2). Such testimony is fact-based — in contrast to attorney testimony which opines as to the reasonableness of legal services — and is necessary for establishing what legal services an attorney actually performed.

3 . The County also argues that Salmon was required by statute to make a written request to the government agency to defend him prior to trial and that Salmon failed to do so. The County argues that the court should take Salmon's alleged procedural failure into consideration in determining the reasonableness of the fee. This argument is entirely irrelevant at this point; the County has waived any such alleged procedural defects by stipulating in the district court that Salmon was entitled to payment of his reasonable attorney fees. For this reason, I would reject the County's argument that because rule 1.5(d)(2) of the Rules of Professional Conduct forbids attorneys to take contingency fees in criminal matters, "an attorney fee that is contingent upon acquittal creating the right to indemnification against the employer is likewise in violation of the rules of ethics.”

4 . Section 38-1-18 of the Utah Code has subsequently been amended to provide an exception for obtaining attorney fees in certain circumstances set forth in section 38-11-107 (Snpp. 1995).