William R. Fix v. Frank Forelle
2014 WY 79
| Wyo. | 2014Background
- Neighbors in South Wilderness Ranches: Fix (appellant, an attorney, pro se) sued/was sued over HOA assessments and a fence Forelle built along their boundary.
- Fix counterclaimed that Forelle’s fence violated subdivision covenants; the district court granted Fix summary judgment on the covenant violation.
- A jury later awarded small damages ($500 to Fix; $400 to Forelle on trespass).
- The covenants permit recovery of “all costs incurred…including reasonable attorney’s fees” for enforcing covenants.
- District court initially awarded Fix $19,158.75 (mostly for Fix’s own time); following Forelle’s post-judgment motion, the court amended judgment, denying recovery for Fix’s own time because Fix appeared pro se and had not "incurred" fees.
- Fix appealed the denial of fees; the Supreme Court affirmed, holding that because Fix did not incur liability for attorney fees, he could not recover under the covenant language.
Issues
| Issue | Plaintiff's Argument (Fix) | Defendant's Argument (Forelle) | Held |
|---|---|---|---|
| Whether Fix is entitled to attorney fees under the covenant wording | Covenant authorizes recovery of costs "incurred" by a lot owner enforcing covenants; Fix (an attorney) spent billable time representing himself and thus should recover those fees | A pro se attorney does not "incur" attorney fees and therefore cannot recover fees he did not pay; no exception for attorneys representing themselves | Held: No. "Incurred" means becoming liable or subject to; Fix did not incur fees for his own time, so he cannot recover them. |
Key Cases Cited
- Fix v. South Wilderness Ranch Homeowners Ass'n, 280 P.3d 527 (Wyo. 2012) (prior appeal affirming HOA’s judgment against Fix on assessments)
- Y-O Invs., Inc. v. Emken, 142 P.3d 1127 (Wyo. 2006) (reiterating American Rule; fees require statutory or contractual authorization)
- Wagon Wheel Village, Inc. v. Harris, 993 P.2d 323 (Wyo. 1999) (discussion of prevailing-party fee principles)
- State ex rel. Scholl v. Anselmi, 640 P.2d 746 (Wyo. 1982) (pro se non-attorney cannot recover § 1988 fees because no attorney fees were actually incurred)
- Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993) (permitting pro se attorney to recover fees based on opportunity/overhead costs and market value of attorney’s time)
- Winer v. Jonal Corp., 545 P.2d 1094 (Mont. 1976) (reasoning that defeated party pays prevailing attorney’s costs whether the attorney is the party or externally retained)