Summary 2008 WY 46

Summary of Decision issued April 16, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Stewart Title Guaranty Co. v. Tilden

Citation: 2008 WY 46

Docket Number: S-07-0208

Appeal from the District Court of Park County, the Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Andrea L. Richard and Erika M. Nash of the Richard Law Firm, PC, Jackson, Wyoming.

Representing Appellee (Plaintiff): Jessica Rutzick of Jessica Rutzick Attorney at Law, PC, Jackson, Wyoming and John R. Vincent of Vincent Law Office, Riverton, Wyoming.

Facts/Discussion: Stewart Title appealed the district court’s award of statutory attorney’s fees and interest to Tilden. This is the third trip to the Court for the instant case.
Whether the filing deadline of W.R.C.P. 54(d)(2) applied: The unambiguous language of W.R.C.P. 54(d)(2) does not place a 14-day filing deadline upon application for fees in a case where the cause of action is for attorney’s fees. There was no reason to require the filing of a motion for attorney’s fees because 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.
Whether doctrine of res judicata bars award: The district court found that the arbitrator denied the attorney’s fee claim on the grounds that he had no authority to decide it. The language and intent of the Interim Order was clear. The arbitrator did not address and decide Tilden’s claim for statutory attorneys’ fees therefore, the issue was not barred by the doctrine of res judicata.
Whether contingent fees can be included: In its brief, Stewart Title did not mention the existence or effect of contingent fees. The Court noted that attorney’s fees must be proven to be reasonable. Whether or not attorney’s fees are fixed or contingent is one factor a district court is to consider in determining the reasonableness under the federal “lodestar” test adopted by the Court. The district court listed and considered the required lodestar factors.
Whether amounts billed in violation of Wyo. R. Prof. Conduct 8.4(g) can be included: Stewart Title contended that one of Tilden’s lawyers violated the rule by hiring and charging Tilden for the services of a certain paralegal. The Court summarily affirmed the district court’s rejection of Stewart Title’s objection to inclusion in the attorney’s fees award of amounts paid to the paralegal.
Whether prejudgment interest can be included: Wyo. Stat. Ann. § 26-15-124(c) does not clearly indicate whether prejudgment interest is available only upon the underlying claim or loss that the insurer refused to pay or also upon the attorney’s fees incurred both in vindicating that claim and in pursuing the attorney’s fees claim under the statute. The Court noted again that the arbitrator declined to decide the attorney’s fees issue because he concluded that he lacked the jurisdiction to make such a determination under applicable arbitration rules and that there was no prevailing party statute for him to apply. Attorney’s fees owed at any given time could have been readily computed and if Stewart Title had asked for the amount, they could have cut off the accrual of fees and interest. An insured, wronged by the dilatory tactics of an insurer cannot be made whole if he or she loses more in attorney’s fees and interest that he or she obtains in an underlying damage award.

Holding: The filing deadline of W.R.C.P. 54(d)(2) did not apply to an application for fees under Wyoming Statutes. The present action was not barred by the doctrine of res judicata because it was not raised, and could not be raised, in the arbitration. The district court did not err by including in the final judgment attorney’s fees that might have been contingent or attorney’s fees paid to a certain paralegal or prejudgment interest on the fees awarded in the judgment.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/6mzkeg .

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