362 P.3d 360
Wyo.2015Background
- Dishman borrowed under a line of credit secured by a mortgage; after his Social Security benefits were redirected and his FIB account closed, he defaulted and FIB sued for judicial foreclosure (complaint sought principal, interest, costs, and attorney fees).
- Dishman (through his granddaughter and attorney-in-fact, Lori Dow) defended; parties exchanged Rule 26 disclosures but FIB provided only verified totals for attorney fees, not itemized billing entries.
- The district court granted partial summary judgment for FIB on the monetary claims but left attorney fees (and a lender’s foreclosure policy cost) for trial due to disputed facts.
- FIB sought in camera review claiming its unredacted billing records contained privileged material but did not submit a privilege log or identify specific privileged entries; the court denied in camera review and FIB produced unredacted bills five days before trial.
- At the bench trial the court admitted the unredacted bills; it awarded most requested fees but excluded expert-fee charges and (on appellate review) the Wyoming Supreme Court reduced the award further for unreasonable and discovery-related charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FIB had to disclose detailed attorney billing under W.R.C.P. 26 | FIB must produce itemized bills supporting its fee claim; nondisclosure violates Rule 26 | FIB asserted privilege and sought in camera review; argued production was not required or could be protected | Itemized bills are required under Rule 26; fee statements are not per se privileged and a privilege claim requires particularized description or a privilege log; FIB’s blanket assertion failed |
| Whether undisclosed billing should have been excluded under W.R.C.P. 37(c)(1) | Exclusion was appropriate because FIB failed to disclose timely and Plaintiff lacked time to prepare | FIB argued the late production was harmless and the court denied the privilege claim, so admission was proper | Failure to timely disclose is sanctionable under Rule 37(c)(1), but exclusion is avoidable if failure is harmless or substantially justified; here late production (Oct 9 for Oct 14 trial) was harmless given available review time and offer to stipulate continuance, so admission was not reversible error |
| Whether awarded attorney fees were reasonable under lodestar and Wyo. Stat. § 1-14-126 factors | Much of FIB’s time was unnecessary or excessive given the small principal; discovery and billing-judgment violations should reduce the award | FIB argued the case was complex (location, competency, Medicaid issues), rates and time were reasonable | Court abused discretion in part: it must scrutinize billing judgment, disallow fees incurred to hide or avoid disclosure, disallow fees for unnecessary work (expert on fee reasonableness, lender-liability research, improper service-by-publication costs), and reduce post-summary-judgment fees for discovery misconduct |
| Appropriate remedy and award amount on remand | Dishman sought full denial or larger reductions for improper fees | FIB sought full recovery except properly excluded items | Supreme Court affirmed in part, reversed in part: disallowed $867.50 in fees tied to discovery-avoidance and other specific improper items, disallowed $963 for unnecessary publication service, disallowed $2,394.50 for fee-expert, and reduced remaining post-summary-judgment fees by 50%, resulting in a final fee award of $13,144.49 and each side bearing its own appellate costs |
Key Cases Cited
- Windham v. Windham, 348 P.3d 836 (Wyo. 2015) (standard of review for Rule 37 interpretation)
- Tolin v. State (In re NRF), 294 P.3d 879 (Wyo. 2013) (party seeking fees must present itemized billing showing time, rates, and reasonableness; courts must ‘‘winnow out excessive hours’’)
- Ringolsby v. Johnson, 193 P.3d 1167 (Wyo. 2008) (billing descriptions may be redacted to avoid privilege waiver; waiver occurs where unredacted bills are placed at issue)
- Pekas v. Thompson, 903 P.2d 532 (Wyo. 1995) (itemized billing required to meet fee claimant’s burden)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (billing judgment; write off unproductive or redundant hours)
- Grommet v. Newman, 220 P.3d 795 (Wyo. 2009) (equitable discretion to reduce or deny contract-based attorney fees)