Cabrera v. Cottrell

• Decision Date: 08 January 1985
• Docket Number: No. 18726,18726
• Citation: 694 P.2d 622
• Parties: John J. CABRERA, Plaintiff and Appellant, v. Ralphine COTTRELL, aka Ralphine Kennel, et al., Defendant and Respondent.
• Court: Utah Supreme Court

Page 622

694 P.2d 622

John J. CABRERA, Plaintiff and Appellant, v. Ralphine COTTRELL, aka Ralphine Kennel, et al., Defendant

and Respondent.

No. 18726.

Supreme Court of Utah.

Jan. 8, 1985.

D. Kendall Perkins, Salt Lake City, for plaintiff and appellant.

Kent M. Kasting, Salt Lake City, for defendant and respondent.

STEWART, Justice.

This is an appeal from a judgment awarding attorneys fees for professional services rendered in the successful defense of an appeal arising out of an action to enforce a uniform real estate contract. In Cabrera v. Cottrell, Utah, No. 17218 (filed February 16, 1982) (unpublished), we remanded this case for the trial court to award reasonable "attorney's fees and costs incurred in defending this appeal," pursuant to Management Services Corp. v. Development Associates, Utah, 617 P.2d 406 (1980). On remand, the district court awarded additional attorneys fees and costs in the amount of $10,906.06. The present appeal is from that judgment.

Appellant claims that the trial court erred in awarding attorneys fees for work related to post-trial motions, preparation of findings of fact and conclusions of law, and an order and judgment, in addition to fees incurred defending the case on appeal. ¹

The inclusion of the attorneys fees for work done during the trial phase of the case was error for two reasons. First, our remand was solely for the purpose of determining attorneys fees incurred as a necessary part of handling the appeal. It did not permit any other fees or expenses to be awarded against the appellant.

Second, a party who is entitled to attorneys fees and costs and fails to ask for all of them in the trial phase of the case, or fails to adduce adequate evidence in support of a finding of reasonable attorneys fees, waives any right to claim those fees later. An award of attorneys fees must generally be made on the basis of findings of fact supported by the evidence and appropriate conclusions of law. Bangerter v. Poulton, Utah, 663 P.2d 100, 103 (1983). Cf. Christensen v. Farmers Insurance Exchange, Utah, 669 P.2d 1236, 1239 (1983); Girard v. Appleby, Utah, 660 P.2d 245, 247 (1983); Hansen v. Gossett, Utah, 590 P.2d 1258, 1261 (1979). It is not consistent with judicial economy to allow a party to apply for additional fees for trial work, whether in an independent hearing, in a separate suit, or at a hearing to determine an award of attorneys fees for necessary appellate work. Once the matter is litigated, or could have been litigated, a party may not later come into court to seek an additional award. Cf. Church v. Meadow Springs Ranch Corp., Utah, 659 P.2d 1045, 1048 (1983); Bradshaw v. Kershaw, Utah, 627 P.2d 528, 531 (1981). Therefore, an attorney will have to estimate fees for work done on post-trial motions or ask the trial court to schedule a hearing on attorneys fees either after post-trial motions are disposed of or after the time for filing such motions has expired.

In the instant case, the trial court, after the prior remand of this case, erred in awarding the respondent additional attorneys fees for trial work when the sole issue should have been only the determination of attorneys fees for the defense of the appeal. Therefore, the fees awarded for trial work must be deducted from the attorneys fees awarded for the appeal.

Appellant also contends that the attorneys fees awarded are too high and therefore unreasonable and that respondent is entitled only to reasonable attorneys fees. Appellant claims that the award of total attorneys fees of some $19,000 in a contract dispute involving a recovery of only $11,350 is per se unreasonable.

Reasonable attorneys fees are not measured by what an attorney actually bills, nor is the number of hours spent on the case determinative in computing fees. In determining the reasonableness of attorneys fees, a trial judge may take into account the provision in the Code of Professional Responsibility which specifies the elements that should be considered in setting reasonable attorneys fees. Utah Code of Professional Responsibility DR 2-106. ² A court may consider, among other factors, 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.

The total amount of the attorneys fees awarded in this case cannot be said to be unreasonable just because it is greater than the amount recovered on the contract. The amount of the damages awarded in a case does not place a necessary limit on the amount of attorneys fees that can be awarded.

Furthermore, contrary to appellant's contention that attorneys fees should be determined on the basis of an equitable standard, attorneys fees, when awarded as allowed by law, are awarded as a matter of legal right.

The appellant...