Salmon v. Davis County, 940315

• Citation: 916 P.2d 890
• Decision Date: 22 April 1996
• Docket Number: No. 940315,940315
• Parties: David L. SALMON, Plaintiff and Appellant, v. DAVIS COUNTY and Davis County Sheriff's Department, Defendants and Appellees.
• Court: Supreme Court of Utah

Page 890

916 P.2d 890

David L. SALMON, Plaintiff and Appellant, v. DAVIS COUNTY and Davis County Sheriff's Department Defendants and Appellees.

No. 940315.

Supreme Court of Utah.

April 22, 1996.

Elizabeth T. Dunning, Mary J. Woodhead, Salt Lake City, for plaintiff.

Brian J. Namba, Melvin C. Wilson, Farmington, for defendants.

Philip W. Dyer, Salt Lake City, for amicus Utah Public Employees' Association.

Syllabus by the Court: ¹

David L. Salmon appeals from a judgment awarding him attorney fees pursuant to section 63-30a-2 of the Utah Code for the successful defense of two misdemeanor criminal charges. He contends that the trial court abused its discretion in denying him the full amount of attorney fees he claimed he incurred in his defense. He also asserts that the trial court erred in holding that he was not entitled to recover attorney fees necessarily incurred in litigating to enforce his right to attorney fees under section 63-30a-2 of the Utah Code.

Justice Durham writes the lead opinion. Associate Chief Justice Stewart writes separately and dissents from part II and concurs in part III of the lead opinion. Justice Russon writes separately and dissents from parts II and III of the lead opinion. Justice Howe concurs in Justice Russon's opinion. Chief Justice Zimmerman concurs in the result reached in part III of the lead opinion and in the result reached in part I of Justice Russon's opinion, writes separately, and announces the decision of the Court. Chief Justice Zimmerman, Associate Chief Justice Stewart, and Justices Howe and Russon conclude that the trial court did not abuse its discretion in awarding Salmon less than the full amount of the attorney fees he claimed he incurred in his defense. Chief Justice Zimmerman, Associate Chief Justice Stewart, and Justice Durham conclude that Salmon was entitled to recover attorney fees necessarily incurred in litigating his entitlement to attorney fees under section 63-30a-2 of the Utah Code.

DURHAM, Justice:

David L. Salmon appeals from a 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.

I

From March 4, 1986, until March 16, 1993, Salmon was employed as a deputy sheriff by the Davis County Sheriff's 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. § 63-30a-2, 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 informations. The County did not agree, however, that all hours spent were necessary and reasonable for the defense of the informations.

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," plaintiff's 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 P.2d 1193, 1197 (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...