Stewart Title Guar. Co. v. Tilden

• Decision Date: 16 April 2008
• Docket Number: No. S-07-0208.,S-07-0208.
• Citation: 2008 WY 46,181 P.3d 94
• Parties: STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellant (Defendant), v. Samuel J. TILDEN, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

181 P.3d 94

2008 WY 46

STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellant (Defendant), v. Samuel J. TILDEN, Appellee (Plaintiff).

No. S-07-0208.

Supreme Court of Wyoming.

April 16, 2008.

Representing Appellant: Andrea L. Richard and Erika M. Nash of The Richard Law Firm, P.C., Jackson, Wyoming. Argument by Ms. Richard.

Representing Appellee: Jessica Rutzick of Jessica Rutzick Attorney at Law, P.C., Jackson, Wyoming; and John R. Vincent of Vincent Law Office, Riverton, Wyoming. Argument by Ms. Rutzick.

Before VOIGT, C.J.; HILL, KITE, and BURKE, JJ; and PERRY, D.J.

VOIGT, Chief Justice.

[¶ 1] On its third trip to this Court in this same case, Stewart Title Guaranty Company (Stewart Title) appeals the district court's award of statutory attorney's fees and interest to Samuel J. Tilden (Tilden). The underlying claim, based upon a land title defect, has ventured through arbitration, the United States District Court for the District of Wyoming, and the Fifth Judicial District Court of the State of Wyoming. We affirm.

ISSUES

[¶ 2] 1. Whether the district court erred as a matter of law in concluding that the filing deadline of W.R.C.P. 54(d)(2) did not apply to Tilden's application for attorney's fees under Wyo. Stat. Ann § 26-15-124(c)?

2. Whether the district court erred as a matter of law in concluding that the doctrine of res judicata does not bar an award of attorney's fees to Tilden?

3. Whether the district court erred as a matter of law in including in the award of attorney's fees contingent fees that have not been paid?

4. Whether the district court erred as a matter of law in including in the award of attorney's fees amounts billed in violation of Wyo. R. Prof. Conduct 8.4(g)?

5. Whether the district court erred as a matter of law in including in the award of attorney's fees prejudgment interest on those fees?

FACTS

[¶ 3] The essential facts of this dispute have been detailed in our previous opinions and will not be repeated here. In Stewart Title Guaranty Company v. Tilden, 2003 WY 31, ¶ 9, 64 P.3d 739, 742 (Wyo.2003) (Stewart Title I), we held that the doctrine of mootness prohibits a district court from entering a judgment confirming an arbitration award when that award has already been satisfied. In Stewart Title Guaranty Company v. Tilden, 2005 WY 53, ¶¶ 7, 20, 21, 27, 110 P.3d 865, 870, 873, 874 (Wyo.2005) (Stewart Title II), we converted the appeal of a non-appealable interlocutory partial summary judgment order to a petition for writ of review, and then held in pertinent part that (1) Wyo. Stat. Ann. § 26-15-124(c) (LexisNexis 2007) created a private right of action in Tilden against Stewart Title under these circumstances; and (2) partial summary judgment against Stewart Title on the issue of its unreasonable refusal to pay damages or cure Tilden's claim was appropriate because that determination had already been made by the arbitrator.¹ The case was remanded to the district court for determination of the amount of statutory attorney's fees. The present case, Stewart Title III, arises out of that remand.

DISCUSSION

Whether the district court erred as a matter of law in concluding that the filing deadline of W.R.C.P. 54(d)(2) did not apply to Tilden's application for attorney's fees under Wyo. Stat. Ann. § 26-15-124(c)?

[¶ 4] On April 5, 2004, the district court entered its Order Granting [Tilden's] Motion for Summary Judgment. That Order directed that Tilden "shall submit an application for attorney's fees under Wyo. Stat. Ann. § 26-15-124(c) and serve the same upon [Stewart Title]." On April 19, 2004, Tilden's attorney sent the application to the district court via overnight express mail. It was received the following morning by the district judge's administrative assistant, who apparently placed it upon the judge's desk instead of filing it. Upon inquiry by Tilden's attorney on April 29, 2004, the application was located and filed.

[¶ 5] On April 30, 2004, Stewart Title filed a Motion to Strike Plaintiffs Application for Attorney's Fees as Untimely. It appears that this motion was not heard at that time because of Stewart Title's nearly concurrent appeal from the summary judgment order. After the opinion in Stewart Title II was published, Stewart Title renewed the motion to strike. The motion was heard on March 8, 2007, as part of the hearing on the substantive issues. The motion was decided in favor of Tilden in the district court's decision letter filed April 26, 2007, and judgment filed June 11, 2007. The present appeal followed.

[¶ 6] Stewart Title contends that Tilden's attorney fee application was untimely under W.R.C.P. 54(d)(2)(A) and (B), which provide as follows:

(A) When allowed by law, claims for attorney's fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proven at trial.

(B) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made.

[¶ 7] The district court ruled that, because attorney's fees are an element of damages to be proven at trial under Wyo. Stat. Ann. § 26-15-124(c), Subsection (A), rather than Subsection (B), of W.R.C.P. 54(d)(2) applies in this case, meaning that there was no 14-day filing deadline that Tilden missed. That determination, which involves the construction of a court rule, is a question of law that we review de novo. Andersen v. Hernandez, 2005 WY 142, ¶ 7, 122 P.3d 950, 951 (Wyo.2005).

[¶ 8] We have little to add in affirming the rationale and conclusion of the district court. The unambiguous language of W.R.C.P. 54(d)(2) does not place a 14-day filing deadline upon an application for fees in a case where the cause of action is for attorney's fees under Wyo. Stat. Ann. § 26-15-124(c). The court rule clearly contemplates the filing of a motion for attorney's fees in situations where judgment has been rendered on a separate substantive cause of action, with attorney's fees being awarded as an adjunct to that judgment. In the instant case, the only reason any additional filing was required was that a partial summary judgment had been granted, resolving the fact that statutory attorney's fees were due but not establishing the amount thereof. In short, there is no reason to require the filing of a motion for attorney's fees under Wyo. Stat. Ann. § 26-15-124(c).

Whether the district court erred as a matter of law in concluding that the doctrine of res judicata does not bar an award of attorney's fees to Tilden?

[¶ 9] Stewart Title contends that Tilden's present claim is barred by the doctrine of res judicata, based upon the' following language contained in the arbitrator's Interim Order:

2. Mr. Tilden's claim for attorneys fees is denied. As stated at the August 1, 2000 hearing, an award of attorneys fees is outside the scope of the arbitrator's powers under paragraph 14 of the policy and rule 42 of the Title Insurance Arbitration Rules. These provisions, construed together, provide that the arbitrator may award attorneys fees only if the laws of the state where the property is located permit a court to award attorneys fees to a prevailing party. Wyoming law does not permit such an award, either in court proceedings or in an arbitration. Wyo. Stat. § 26-15-124 is not a "prevailing party" type of fee shifting statute, since it permits an award of fees to only one party, the insured.

[¶ 10] "Res judicata bars the relitigation of previously litigated claims or causes of action." Wilson v. Lucerne Canal Power Co., 2007 WY 10, ¶ 22, 150 P.3d 653, 662 (Wyo.2007) (quoting Eklund v. PRI Envtl., Inc., 2001 WY 55, ¶ 15, 25 P.3d 511, 517 (Wyo.2001)) (emphasis in original). Application of the doctrine of res judicata is a question of law that we review de novo. Wilson, 2007 WY 10, ¶ 23, 150 P.3d at 662.

[¶ 11] Stewart Title argues that the language quoted from the Interim Order effectively denied Tilden's claim for attorney's fees. The district court disagreed, finding instead that the arbitrator denied the attorney's fees claim on the ground that he had no authority to decide it. Specifically, the arbitrator held that an `award of attorney's fees was outside the scope of his powers, both under the title insurance policy and under the insurance arbitration rules governing the proceedings. The key to the arbitrator's holding was that an insurance arbitrator may consider attorney's fees under a state statute that allows recovery of such fees by the prevailing party, but not under a statute such as Wyo. Stat. Ann. § 26-15-124, which creates a right of recovery in only one party, the insured.

[¶ 12] The language and intent of the Interim Order could hardly be more clear. The arbitrator did not address and decide Tilden's claim for statutory attorney's fees, and therefore, the issue is not now barred by the doctrine of res judicata. Had there been any residual doubt about that intent, the Final Award of Arbitrator again rejected Tilden's attempt to have the arbitrator address the attorney's fees claim. The arbitrator concluded that no Wyoming precedent existed similar to the case relied upon by Tilden, Hedgecock v. Stewart Title Guaranty Company, 676 P.2d 1208, 1210-11 (Colo.Ct.App. 1983), wherein the court, seemingly as a matter of policy, held that an insurer who "guessed wrong" as to its duty to defend an insured, should be liable for the insured's attorney's fees in the resultant declaratory judgment action.²

[¶ 13] The doctrine of res judicata bars the relitigation of claims that were...