Bushnell v. Barker
2012 UT 20
| Utah | 2012Background
- Contract dispute between Bushnell and Barker Co. over tax services; contract includes attorney fees clause allowing cost shifting for enforcing the agreement.
- Bushnell terminated Barker Co. after dissatisfaction with work; Barker sued Bushnell for breach; Bushnell counterclaimed against Barker Co. and pleaded alter ego theory against Barker.
- District court granted Barker a directed verdict on the third‑party claim and later entered judgment in Barker Co.'s favor on Bushnell’s contract/breach claims; third‑party complaint not formally dismissed until September 19, 2008.
- Barker sought attorney fees under Utah Code § 78B‑5‑826 as prevailing party in the third‑party action; district court denied, citing Barker not a party to the contract.
- Barker also sought costs under Rule 54(d); court invited cost submissions; Barker filed a memorandum of costs on May 7, 2008.
- Court of appeals affirmed both fee and cost rulings; Utah Supreme Court granted certiorari to resolve the fee and cost issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reciprocal attorney fees apply where alter ego liability would not make Barker a defaulting party | Barker argues Bushnell would have recovered fees against Barker personally if alter ego prevailed | Bushnell contends Barker would not be a defaulting party to the contract even if alter ego prevailed | No; alter ego did not render Barker a defaulting party; statute not triggered |
| Whether Barker is entitled to costs under Rule 54(d) despite court ambiguities | Barker's cost memo timely filed after verdict but before judgment | District court incorrectly treated costs as premature or untimely | Yes; Barker’s cost memo timely and district court must determine costs on remand |
Key Cases Cited
- Hooban v. Unicity Int'l, Inc., 2012 UT 19 (Utah Supreme Court (2012)) (reciprocal fee statute hinges on contract-based fee recovery)
- Shaoxing Cnty. Huayue Imp. & Exp. v. Bhaumik, 191 Cal. App. 4th 1189 (Cal. App. 4th 2011) (alter ego is not independent liability; piercing veil does not create contractual fee entitlement)
- Dale K. Barker Co. v. Bushnell, 2009 UT App 385, 222 P.3d 1188 (Utah Court of Appeals (2009)) (court addressed scope of reciprocal fees under contract)