Watkiss & Campbell v. Foa & Son
| Decision Date | 22 March 1991 |
| Docket Number | No. 890045,890045 |
| Citation | 808 P.2d 1061 |
| Parties | WATKISS & CAMPBELL, a professional corporation, Plaintiff and Appellee, v. FOA & SON, a New York corporation, Defendant and Appellant. |
| Court | Utah Supreme Court |
L. Charles Spafford, Chase Kimball, Salt Lake City, for defendant and appellant.
Vincent C. Rampton, Salt Lake City, for plaintiff and appellee.
Defendant Foa & Son appeals from a grant of plaintiff Watkiss & Campbell's motion for summary judgment. The district court determined that no genuine issue of material fact existed with respect to the amount billed by plaintiff for legal services rendered.
In November 1986, Foa & Son ("Foa") retained the firm of Watkiss & Campbell ("Watkiss") to represent it in the case of Daw, Inc. v. American Home Assurance Co., 1 pending in the United States District Court for the District of Utah, in which Daw sought damages from Foa in excess of $1 million. Watkiss obtained a dismissal in the case by filing motions for summary judgment and rule 11 sanctions which were eventually withdrawn by Foa in exchange for Daw's motion to dismiss the action.
Watkiss submitted bills to Foa for legal services in three separate statements totaling $40,583.07. Included in the bill was a charge of $10,000 for "exceptional result." Watkiss billed at an hourly rate of $110, whereas Foa claims that the agreed rate was $105 per hour.
Furthermore, Foa claims that Watkiss did not contact it for several months and then presented a substantial bill. Foa also claims that had it known the attorney fees would be so high, it would have turned the defense over to its insurance company because its liability coverage had a deductible of $10,000.
Foa refused to pay the bills submitted by Watkiss, and on August 26, 1987, the law firm filed this action to recover its fees. Foa appeared specially and filed a motion to dismiss for lack of personal jurisdiction under Utah Rule of Civil Procedure 12(b)(2). The trial court denied the motion to dismiss on September 12, 1988. After the trial court denied Foa's motion to dismiss, Foa filed an answer on September 19, 1988, asserting a number of affirmative defenses including defective service of process.
On October 21, 1988, Watkiss filed a motion for summary judgment and presented affidavits from opposing counsel and insurance companies in the Daw litigation. The affidavits stated that the attorneys were familiar with the work done in the Daw litigation and that the billing rates presented by Watkiss were reasonable. Foa's counsel, L. Charles Spafford, presented his own personal counter-affidavit, stating that he was familiar with the billing practices in the region and that after reviewing the record in the case, he was of the opinion that Watkiss's bill was excessive.
The court heard arguments on Watkiss's motion for summary judgment on October 31, 1988, and apparently found that the Spafford affidavit was inadmissible. Consequently, the court granted summary judgment in favor of Watkiss.
On November 7, 1988, Foa filed a pleading entitled "exception to order and motion for reconsideration of summary judgment," which was denied on December 21, 1988. Following the denial of Foa's motion for reconsideration, it submitted a form of order to the court on December 28, 1988, which granted Foa thirty days following the date of the execution of the order in which to perfect its appeal. The court signed the order on January 3, 1989, and Foa filed this appeal on January 31, 1989.
Foa presents five issues on appeal: (1) whether Foa's filing of the motion for reconsideration tolled the statutory time period to perfect appeal, (2) whether the trial court erred in excluding the Spafford affidavit and granting summary judgment, (3) whether the assertion of the affirmative defense of defective service of process should have prevented summary judgment in favor of Watkiss, (4) whether the trial court erred in awarding Watkiss attorney fees in the present action, and (5) whether Watkiss is entitled to attorney fees or other sanctions in connection with this appeal.
Foa's first claim is that the filing of the exception to order and motion for reconsideration of summary judgment tolled the thirty-day time period within which to file a notice of appeal. 2 Rule of the Utah Supreme Court 4(b) states in pertinent part:
(b) Motions post judgment or order. If a timely motion under the Utah Rules of Civil Procedure is filed in the district court by any party: ... (3) under rule 59 to alter or amend the judgment; or (4) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.
Foa claims that the motion for reconsideration was made pursuant to Utah Rule of Civil Procedure 59. Watkiss claims that rule 59 does not envision or allow a "motion for reconsideration." Rule 59 states:
(a) Grounds. Subject to the provisions of Rule 61, a new trial may be granted to all or any of the parties and on all or part of the issues, for any of the following causes; provided, however, that on a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment:
(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion by which either party was prevented from having a fair trial.
....
(3) Accident or surprise, which ordinary prudence could not have guarded against.
(4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.
(5) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice.
(6) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.
(7) Error in law.
(b) Time for motion. A motion for a new trial shall be served not later than 10 days after the entry of the judgment.
....
(e) Motion to alter or amend a judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
In Utah State Employees Credit Union v. Riding, 3 a party filed a motion to reconsider a trial court's order of judgment. We stated: 4
Watkiss further asserts that the proper motion for Foa to have filed was a motion for a new trial. Indeed, in Moon Lake Electric Association v. Ultrasystems Western Constructors, 5 the Utah Court of Appeals stated:
Neither Utah R.Civ.P. 59 (new trial) nor Utah R.Civ.P. 56 (summary judgment) directly addresses the availability of a motion for a "new" trial following summary judgment. Our analysis of Rule 59(a) and the rationale behind it leads us to conclude that such a motion is, nonetheless, procedurally correct. 6
There is, of course, a need for finality of judgments and orders. In Drury v. Lunceford, 7 a trial was held on the issue of damages alone, and the judge awarded $2,000 to the plaintiff. Two days later, the judge signed a document entitled "reconsideration," stating that upon reconsideration of the law the plaintiff was entitled to $4,800 damages. Two months later, the judge signed an order granting the defendant's motion for a new trial. One week later, the plaintiff filed a motion to reconsider granting the defendant's motion for a new trial. Four months later, the judge signed an order stating that the order granting a new trial was vacated and the $4,800 judgment was reinstated.
On appeal, we stated:
[I]f the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-reconsideration, asking the court to again reverse himself? Tenacious litigants and lawyers might persist in motions, arguments and pressures and theoretically a judge could go on reversing himself periodically at the entreaties of one or the other of the parties ad infinitum. 8
Nevertheless, had Foa appropriately entitled its motion as one for a new trial, the effect would have been to ask the court to reconsider the summary judgment, and it would have tolled the time period to file an appeal. Under the facts of this case, the incorrect title placed upon the pleading was not a bar to defendant's case. 9 Indeed, the record reflects that the judge ruled on the motion as if it were a motion for a new trial. 10 Because the court treated the motion to reconsider as a motion for a new trial, we conclude that the filing of the motion tolled the time in which to file an appeal. Thus, the time period to file an appeal began to run against Foa when the judge signed the order of denial. 11 Because the court signed the order on January 3, 1989, and Foa timely filed its notice of appeal on January 31, 1989, we are not without jurisdiction to hear this appeal.
We next address the issue of whether the affidavit of Foa's attorney was admissible to present a material fact that precluded summary judgment. Utah Rule of Civil Procedure 56(c) states that summary judgment "shall be rendered forthwith if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 12
In addition, subsection (e) states:
(e) Form of affidavits: further testimony; defense required. Supporting and opposing...
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