Summary 2011 WY 74

Summary of Decision May 2, 2011


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Case Name: Joe’s Concrete and Lumber, Inc. v. Concrete Works of Colorado, Inc.

Citation: 2011 WY 74

Docket Number: S-10-0036

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462090

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge

Representing Appellants (Plaintiffs): Andrea L. Richard of The Richard Law Firm, Jackson, Wyoming.

Representing Appellee (Defendants): William H. Twichell, Pinedale, Wyoming.

Date of Decision: May 2, 2011

Facts: After a jury found that Appellees breached its contract with them, Appellants presented evidence documenting its claim for attorney fees. The district court declined to consider the documentation on the ground that it was not presented at trial, concluded the evidence presented at trial did not support an attorney fees award and denied the attorney fees claim in its entirety. On appeal, Appellants contend the district court erred in failing to consider the evidence.

Issues: Whether the district court properly denied attorney fees.

Holdings: Generally, Wyoming subscribes to the American rule regarding recovery of attorney fees, making each party responsible for its own attorney fees unless an award of fees is permitted by contract or statute. In this case, the jury found the invoices Appellant presented to Appellee with each truckload of concrete constituted contracts and that Appellee breached the contracts when it failed to pay the invoice amounts in full. The contracts provided that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the costs and attorney fees incurred in the collection efforts. Appellant did, in fact, take action to collect on the accounts and a jury awarded it in damages. In accordance with the terms of the contracts, Appellee was obligated to pay costs and attorney fees.

The issue of attorney fees may be addressed as an element of damages, or it may be addressed through the filing of a post-judgment motion as described in W.R.C.P. Rule 54. Pursuant to the language in Rule 54(A), claims for attorney fees are to be made by motion unless the substantive law governing the action provides for their recovery as an element of damages to be proved at trial. Where the parties’ contract provides that legal costs were part of the damages available in the event of its breach, the attorney fees fall within the substantive claim exception to F.R.C.P. 54 and are to be proven at trial, not by post-trial motion. In contrast, where the contract provides for the recovery of fees by the prevailing party, such fees are not an element of damages to be proved at trial but are collateral to the merits of the case requiring a Rule 54(d)(2) motion.

The contracts at issue in the present case did not provide that attorney fees were an element of damages to be proved at trial nor did they expressly provide that the prevailing party was entitled to fees. The contracts provided only that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the attorney fees incurred in the collection efforts. However, it is logical to conclude the parties intended that Appellee, as the buyer, would only be obligated to pay attorney fees if Appellant successfully proved Appellee actually owed the amounts claimed to be due under the contracts. In essence, these contracts were prevailing party contracts. As contemplated by the contract language, Appellant was forced to take action to collect amounts due on the accounts. Appellant filed a breach of contract action in which it prevailed. It was, therefore, entitled to recover its fees. Under these circumstances, the attorney fees were not an element of damages to be proved at trial but were collateral to the merits of the case.

The case is reversed and remanded with instructions that Appellant is contractually entitled to attorney fees. The district court must consider all attorney fees evidence currently contained in the record and determine whether: 1) the fee charged represents the product of reasonable hours times a reasonable rate; and 2) other factors of discretionary application should be considered to adjust the fee either upward or downward.

C.J. Kite delivered the opinion for the court.