Cottonwood Mall Co. v. Sine, 890218

• Decision Date: 31 March 1992
• Docket Number: No. 890218,890218
• Citation: 830 P.2d 266
• Parties: COTTONWOOD MALL CO., Plaintiff and Appellee, v. Wesley F. SINE, dba Cottonwood Bowling Lanes, an individual and Cottonwood Bowling Lanes, Inc., a Utah corporation, Defendants and Appellants.
• Court: Utah Supreme Court

Page 266

830 P.2d 266

COTTONWOOD MALL CO., Plaintiff and Appellee, v. Wesley F. SINE, dba Cottonwood Bowling Lanes, an individual and Cottonwood Bowling Lanes, Inc., a Utah

corporation, Defendants and Appellants.

No. 890218.

Supreme Court of Utah.

March 31, 1992.

Raymond Scott Berry, Julie V. Lund, Salt Lake City, for Cottonwood Mall.

Ronald C. Barker, Mitchell R. Barker, Salt Lake City, for Wesley Sine.

STEWART, Justice:

This case was previously before the Court in Cottonwood Mall Co. v. Sine, 767 P.2d 499 (Utah 1988). Defendants Wesley F. Sine and Cottonwood Bowling Lanes ("Sine") now appeal from the amended judgment awarding $39,744.62 in attorney fees to plaintiff Cottonwood Mall Co. ("Cottonwood Mall").

Sine leased space for bowling lanes in the Cottonwood Mall Shopping Center in Salt Lake County, Utah. The twenty-year lease, originally signed by Sine's predecessors, expired September 14, 1981. Prior to expiration, Cottonwood Mall notified Sine that he would be treated as a tenant on a month-to-month basis upon expiration of the lease. In October, 1981, Cottonwood Mall substantially increased the rent and shortly thereafter terminated Sine's month-to-month tenancy. Sine was directed to vacate by November 30, 1981, but held over past that date while the parties attempted to negotiate a new lease. The negotiations failed, and Cottonwood Mall brought this action to recover possession. Sine counterclaimed to enforce an alleged oral agreement, but vacated the premises before trial. The trial court ruled against Sine on the counterclaim and awarded judgment to Cottonwood Mall for the reasonable rental value of the space during the hold-over period. The court, however, contrary to Cottonwood Mall's request, refused to award attorney fees. Sine appealed the judgment, and Cottonwood Mall cross-appealed, seeking attorney fees.

On appeal, we affirmed the trial court except on the issue of attorney fees. Cottonwood Mall based its claim to attorney fees on the following provision from the 1961 lease:

If, during the terms of this lease, lessor is required to commence any action to collect any of the rental due under this lease, or to enforce any of the provisions herein, or to secure possession of the leased premises in the event this lease is terminated as herein provided, or at the expiration of the term, lessee agrees, in such event or events, to pay all costs of such action or actions, together with reasonable attorneys' fee.

767 P.2d at 503.

We held that the lease provisions were binding on the parties during the hold-over period, even though the lease had expired. We stated that when the month-to-month tenancy expired on November 30, 1981, "[Sine] had the duty to vacate, and when it failed to do so, the provision for the payment of attorney fees became operative." 767 P.2d at 503.

On remand, Cottonwood Mall's attorney presented an affidavit in support of attorney fees stating that according to his billing records, prejudgment attorney fees, including office costs passed on to Cottonwood Mall, totaled $22,552.17. He added interest at 12% per annum, bringing the total to $39,744.62, and claimed postjudgment attorney fees in the additional amount of $6,641.58. The attorney attached copies of his "office ledger records" to the affidavit, but did not attach individual billing statements because of "their volume and the expense involved in copying each individual statement for the seven years that the case has been pending."

Sine objected to the affidavit, and the trial court denied his request to conduct discovery on the attorney fees issue. Although the parties briefed the issue of the appropriateness of the amount of attorney fees, no evidentiary hearing was held on the issue in the trial court. On May 2, 1990, the trial court granted Cottonwood Mall's motion to amend the judgment for the addition of attorney fees over Sine's objection.

Sine appeals this ruling. Two issues are presented in this appeal: (1) whether the trial court abused its discretion in awarding Cottonwood Mall its entire requested attorney fees without affording Sine either discovery or a hearing on the issue, and (2) whether the lease entitled Cottonwood Mall to recover attorney fees for legal work performed after Sine vacated the leased premises.

We turn first to whether Sine was entitled to discovery and a hearing on the attorney fees issue. An award of attorney fees must be based on the evidence and supported by findings of fact. Cabrera v. Cottrell, 694 P.2d 622, 625 (Utah 1985). See also Hal Taylor Assocs. v. Unionamerica Inc., 657 P.2d 743, 751 (Utah 1982); Paul Mueller Co. v. Cache Valley Dairy Ass'n, 657 P.2d 1279, 1287 (Utah 1982).

A party who requests an award of attorney fees has the burden of presenting evidence sufficient to support an award. Except in the most simple cases, the evidence should include the hours spent on the case, the hourly rate or rates charged for those hours, and usual and customary rates for such work. The evidence may be supplied by affidavit. If the opposing party requests an evidentiary hearing, the party seeking the award should make the supporting data available to the opposing party. Although we do not intend to turn fee award determinations 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 is provided access to supporting documents such as attorney time records. If...