*1 subject appli- school district is entity’s plan- governmental local cable under zoning requirements Sec-
ning and govern- 11-16-1, a local except that
tion entity may not:
mental any impact
(5) require pay district reasonably re- improvements
fee for project upon impact
lated improvement to’ need
address.... fully has been made legislature
Thus impact
aware of the utilization governments and has chosen distin-
local at least
guish them from local assessments covered section 53A-20- the instances spoken, legislature
107. has Because area, it is un-
setting public policy in this any.
necessary for us to declare fee
We conclude the flood control fee,
imposed by County impact is an under section 53-4- a local assessment below is affirmed.
HALL, C.J., STEWART, JJ., ZIMMERMAN,
DURHAM and
concur. CAMPBELL, &
WATKISS
professional corporation, Appellee,
Plaintiff and SON, corporation, & a New York
FOA Appellant.
Defendant and
No. 890045.
Supreme Utah.
March *2 by plaintiff legal amount billed ser-
vices rendered. (“Foa”) Foa November & Son
retained the firm of Campbell Watkiss & (“Watkiss”) represent it in the case Daw, Inc. v. American Home Assurance Co.,1pending in the United States District Utah, Court for the District of in which sought damages Daw from Foa excess of million. $1 Watkiss obtained a dismissal by the case motions for judgment and rule 11 sanctions which were eventually withdrawn exchange Foa in for Daw’s motion to dismiss the action. Watkiss submitted bills to for legal Foa separate services three statements total- $40,583.07. ing bill Included was a charge $10,000 “exceptional result.” $110, hourly Watkiss billed at an rate agreed whereas Foa claims rate per hour. $105 Furthermore, Foa claims that Watkiss did not contact it for several months and presented then a substantial bill. Foa also claims that had it known high, would so would have turned the over its company insurance be- liability coverage cause its had a deductible $10,000. pay Foa refused to the bills submitted Watkiss, 26, 1987, August and on the law firm filed this action to recover its fees. appeared specially Foa and filed motion personal jurisdiction dismiss for lack of under Utah Rule of Civil Procedure 12(b)(2). The trial court denied the motion September 12, to dismiss on 1988. After court trial denied Foa’s motion to dis- miss, September Foa filed an answer on Spafford, Kimball, L. Charles Chase Salt 1988, asserting a number affirmative City, Lake appellant. defendant and including of pro- defenses defective service Rampton, City, Vincent C. Salt Lake cess.
plaintiff appellee. 21, 1988, On October filed Watkiss present- motion for judgment and
HALL, Chief Justice: opposing ed affidavits from counsel and appeals companies litigation. Defendant Foa & Son from a insurance in the Daw grant plaintiff Campbell’s Watkiss & attorneys affidavits stated that summary judgment. motion for The dis- were the work familiar with trict litigation billing court determined that no is- Daw and that rates presented sue material fact existed with respect Watkiss were reasonable. (D.Utah 1986). 1. No. 86-C-0330 W post counsel, Spafford, judgment or L. Motions order. Charles
Foa's personal counter-affida- If a motion under presented his own the Utah Rules vit, with the stating that he was familiar Procedure is filed in the Civil district region and that after billing practices in the by any party: ... under rule 59 *3 case, he in reviewing the record the (4) judgment; to alter or amend the or opinion that was exces- the Watkiss’s bill trial, under Rule 59 a new the for time sive. appeal parties for all run shall from entry denying the of the order a new arguments on Watkiss’s court heard granting denying any or trial or other judgment on motion for October such motion. 31, 1988, that the apparently and found Con- Spafford affidavit was inadmissible. that motion for Foa claims the reconsid- granted sequently, the court pursuant made eration was to Utah Rule of in of Watkiss. judgment favor claims Civil Procedure 59. Watkiss 7, 1988, plead- filed a On November Foa or rule 59 does not envision allow “mo- ing and motion “exception entitled order tion for reconsideration.” Rule 59 states: summary judgment,” for reconsideration (a) Subject provisions Grounds. 21, 1988. denied on December which was granted Rule trial new motion for Following the denial Foa’s any part or of the on all or all and reconsideration, a form of or- it submitted issues, any following of the of the 28, 1988, der to the court on December causes; however, provided, that on a mo- following thirty days granted which Foa in tion for a new trial an action tried in the of the order the date of execution may open jury, without a the court the perfect its The court which to entered, judgment if one has been take 3, 1989, January and signed the order on testimony, findings of additional amend January Foa filed this conclusions of law or make new appeal: (1) presents Foa five issues on conclusions, findings the and direct filing of motion for re- whether Foa’s entry judgment: new of a statutory peri- time consideration tolled (1) Irregularity proceedings in the (2) trial perfect appeal, od to whether the court, jury party, adverse or excluding Spafford in court affi- erred court, or abuse of discre- order of (3) granting summary judgment, davit and prevent- tion which either the assertion of the affirmative whether having ed a fair trial. of defective service of prevented summary judgment should have Watkiss, (4) trial whether the favor (3) surprise, Accident or which ordi- awarding Watkiss erred guarded nary not have prudence could action, present fees in and whether against. entitled to fees or oth- Watkiss is evidence, (4) Newly mate- discovered er sanctions connection with making applica- rial tion, not, he with reason- could FOR RECONSIDERATION MOTION diligence, have discovered and able claim is that the of the Foa’s first produced at the trial.
exception
to order and motion
reconsid-
inadequate
Excessive or
dam-
eration of
tolled
given
been
ages, appearing
have
period
file a
thirty-day time
within which to
passion
preju-
under the influence
appeal.2 Rule of the Utah Su-
notice of
4(b)
dice.
pertinent part:
preme Court
states
4(a)
clerk of the
filed with the
Supreme
rule 3 shall be
states:
2. Rule of
days
after
date
court within 30
district
(a)
Appeal
order.
from final
appealed
entry
judgment or order
permitted as a
of the
a case which
right
from the district court to
matter
Supreme
from....
Court,
appeal required
the notice of
(6) Insufficiency
judge signed
of the evidence
document entitled “reconsid
decision,
justify
other
eration,”
the verdict or
stating
reconsideration
it is
law.
plaintiff
law the
was entitled to
Error
law.
$4,800 damages.
later,
Two months
A
Time for motion.
motion for
judge signed
granting
an order
the defen
new trial shall be
not later than
served
dant’s motion for a new trial. One week
judgment.
days
after the
later,
plaintiff
filed
a motion
recon
granting
sider
the defendant’s motion for a
(e)
judg-
Motion to alter or amend a
later,
new trial. Four
the judge
months
ment.
motion to alter or amend the
signed
stating
an order
the order
*4
judgment shall be served not later than
granting a new trial was vacated and the
judgment.
days
10
after
$4,800 judgment was reinstated.
Employees
State
Credit
Utah
Union
appeal,
On
we stated:
Riding,3 party
a
filed a motion to
v.
recon-
against
permit-
the
ruled
were
[I]f
judgment.
a
order of
sider
trial court’s
We
rules,
go beyond
ted to
the
a mo-
make
stated:
are unaware of
such
“[W]e
reconsideration,
persuade
motion under our rules.... We think the
tion for
and
motion to reconsider the motion to vacate
himself,
judge
the
to reverse
the ques-
is abortive under
arises, why
tion
should not the other
rules....”4
against
per-
who is now ruled
a
mitted to make motion for
proper
Watkiss further asserts that
re-reconsid-
eration,
motion for Foa to have filed was a motion
asking
again
reverse
Indeed,
new trial.
Moon Lake
litigants
himself? Tenacious
and law-
Ultrasystems
Electric Association
v.
motions,
yers might persist
arguments
Constructors,5 the Utah
Western
pressures
and
theoretically
judge
and
Appeals stated:
go
reversing
could
on
periodical-
himself
(new trial)
Utah
Neither
R.Civ.P. 59
nor
ly at the
entreaties
one
the other of
Utah
56 (summary judgment)
R.Civ.P.
ad infinitum.8
directly
availability
addresses the
aof
Nevertheless, had Foa appropriately
following
motion for a “new” trial
sum-
trial,
entitled its motion as one for a new
mary judgment.
analysis
Our
of Rule
59(a)
the effect would have been
ask the court
the rationale
it leads us
behind
is,
summary
to conclude
such
judgment,
a motion
none-
to reconsider the
theless, proeedurally correct.6
period
it would have tolled the time
to file
case,
appeal.
an
Under the facts of this
course,
is, of
finality
There
a need for
placed upon
pleading
the incorrect title
judgments and
In Drury
orders.
v. Lunce-f
bar
was not a
to defendant’s case.9 In
ord,7 a trial was held on the
issue
deed,
alone,
the record
damages
judge
reflects that
judge
and the
awarded
$2,000
later,
plaintiff.
days
Two
ruled on the motion as if it were a motion
211,
(1970).
(Utah
3. 24
2d
1
Ct.App.1988).
Utah
469 P.2d
5.
the work done. Spafford’s Mr. affi cross-claim, third-party claim, shall be davit practice stated that he was licensed to responsive asserted in the pleading there- law in Utah and billing was familiar with required, to if except one that practices in the area. These statements following option defenses at the of were qualify Spafford sufficient to Mr. pleader by be made motion: ... competent testify in the area of insufficiency process.... service fees. Second, Spafford’s addition, Mr. 12(h) affidavit stated provides rule also that pertinent he was part: “(h) familiar with the case because Waiver of defenses. he had pleadings, discovery, reviewed “the objections waives all defenses and and other court documents in present by said action.” which he not does either motion It unnecessary or, for Mr. Spafford provided as hereinbefore if he has made actually motion, have been involved in the no reply....”16 Daw in his answer Yates, Dupler v. 14.In 10 Utah 2d where there exists between them bona fide (1960), we stated: dispute of material fact. provide (citations omitted). Rule U.R.C.P. is not intended to Id. P.2d at 636-37 regular substitute for the trial of cases disputed 12(b). upon which there are 15. Utah R.Civ.P. issues of fact litigation depends. which the outcome of the itAnd should be invoked with caution to the 12(h). 16. Utah R.Civ.P. litigants may end that be afforded a trial rule, party may not assert the an adverse rest thus free to Foa was allegations insufficiency pro the mere or denials of his of service answer, option pleading, response, by his way or it had the but affidavits cess Nevertheless, rule, raising it motion. Wat- or as otherwise precludes filing showing rule facts urges specific must set forth kiss that dismiss, motion to If more than one is a issue for trial. there such motion which did respond, summary judg- Foa filed one he not so since does insufficiency ment, defense of appropriate, not include the shall be entered the defense was waived. process, service him. interpreta cited for that authority is
No obligated Foa to do than was thus more indeed, appears tion, that there is simply rely upon allegations contained However, a num jurisdiction. in this none so, having in its pleadings.19 Not jurisdictions have addressed of federal ber by the counter-affidavits or either 12(b) rule defenses the issue whether appropriate cross-motion may be pre-answer in a included judgment, the issue was not raised thereby an answer and asserted time on cannot now be raised for first Prior to there was waived. deemed opinion in the federal divergence some However, Professor Moore jurisdictions. IV. ATTORNEY FEES reasoned” “better has observed cases, of the feder decided under version Foa’s final claim is that trial rule, present al rule that tracked awarding $5,000 erred in defenses waived.17 held that such were consistently fol- Utah has Watkiss. was amended 1966 to
The federal rule rule attor- lowed the well-established explicit, under ney provid- make waiver unless fees cannot be recovered previously view had reasoned” In the “better ed for contract or statute.20 implicit case, in the rule.18 It is evident dispute do not been instant 12(h) rule policy signed no written retainer was require Procedure is to all Rules of Civil claim for at- and therefore no contractual *7 presented for motions to be decision torney may sought. such fees be so as to early and all at the same time do, however, dispute The judicial efficiency and to reduce promote attorney statute. pursuant fees award of therefore hold litigation expenses. We fees is statutory attorney award of of defective the affirmative defense Ann. governed principally by Utah Code is barred waiver. process service (1988), states: 78-27-56 § dispositive Also affirmative actions, shall In civil part the failure on the defense issue is attorney’s to a fees award reasonable specifically raise the issue defec Foa to prevailing party if the court determines time of the service of at the tive to the action action or defense that the summary judgment hearing. brought or and not was without merit faith, except good under Sub- asserted 56(e) pro- Civil Procedure Utah Rule of (2). section pertinent part: vides discretion, court, may (2) The in its summary judgment is a When motion a fees fees or limited in this award no supported made and is 251, Yates, 887, (Utah 1979); Dupler 10 2d Wheeling Corp., v. 17. Branic v. Steel 152 F.2d Derounian, 624, Cir.1945); (1960). (3d 6 v. F.R.D. 636 351 P.2d Keefe 11, (N.D.Ill.1946). 12-13 Bracey, 20.See, Country v. e.g., Canyon Store Practice, Moore, para. 18. 2A J. Moore’s Federal 1989); 414, (Utah Manage- Turtle P.2d 419-20 1990). 12.23, (2d n. 6 ed. 12-195 667, ment, Management, Haggis 645 P.2d Inc. v. (Utah 1982). Fitzgerald, 671 226-27 Hall v. Cook, 1983); Thornock (1), party only adopt but were to approach, parties under Subsection we such an the court: who had but difficult valid claims would be economically precluded bringing
(a)
suit.
party
finds the
has filed an affi-
be-
impecuniosity
davit of
the action
event,
In any
attorney
fee issue is
court;
fore the
light
moot in
of our determination that
the record the
court enters
genuine
precluded
issues of material fact
awarding
fees under the
reason
judgment.
(1).
provisions of Subsection
Reversed and remanded for
resolution
section 78-27-
Watkiss claims that
the additional factual
issues raised
attorney
requires
the court to award
Spafford affidavit. Costs to defendant.
prevailing
fees to a
when
attorney
the court does not award
fees
HOWE, C.J., DURHAM, J„ and
fees,
only
re
awards
limited
the court is
JACKSON,
NORMAN H.
quired
findings
why
specific
to enter
Appeals Judge.
requested
the full
amount
was
award
STEWART, Justice (dissenting):
states,
clearly
ed. Section 78-27-56
how
ever,
attorney
that the court shall award
I dissent.
I would affirm the trial
prevailing party only
fees to the
if it deter
court’s
because defen-
mines
that the
action without merit
conclusory
dant’s affidavits were so
brought
action was
bad they
necessary
specifici-
lacked the
factual
faith.21 If the court
both
finds
elements
ty
under Rule 56
Utah Rules Civil
statute,
no
then
has
discretion and
Procedure to create a
issue of ma-
attorney
must award reasonable
fees to the
terial fact.
prevailing party.
Furthermore,
disagree
I
with the conclu-
In Arnica Mutual
Insurance Co. v.
sion that the notice of
Schettler;22
Appeals
the Utah Court of
stat-
filed, although
agree generally
I do
ed that
recovery
when
seeks
“motion to reconsider”
extend the
78-27-56,
fees under section
time for
a notice of
when the
specific findings
trial court must make
equivalent
motion can be deemed to be the
regard to each element of the statute.23
aof motion for a new
trial under Rule
Specific findings
of justice
further the ends
Utah Rules
Procedure.
Civil
allowing
appeals
courts
better review
However, defendant’s motion to reconsid-
specific
trial court’s award. Without
purport
er did not
way
findings,
reviewing
court cannot deter-
for new trial.
the motion
mine whether the award of
argued in
the trial court
aas motion
*8
was based
a
brought
meritless claim
60(b)
under Rule
Utah Rules Civil
simply
in bad
or
faith
because the recover-
60(b)
A
Procedure.
Rule
motion does not
prevailed.
ing party
ap-
extend the time for
a
notice of
party may bring
4(b),
good
peal.
a
faith
Rule
Rules of the
See
Utah
prevail.
action and not
Failure
a
Supreme
cause
Court.1 Because
defendant
automatically
of action or defense
not
styled
does
the motion
a motion for reconsid-
require
losing party
pay
argued
60(b)
costs.
If
eration and then
it as Rule
a
See,
Johnson,
149,
e.g., Cady
findings
v.
671 P.2d
151-
tional
or
21.
whether
not an
(Utah 1983).
judgment
required
alteration
would be
granted;
if the
Rule
motion is
under
(Utah Ct.App.1989).
22.
promoting However, circum-
pute. under these
stances, I take motion would defendant’s represented to Rule
for what it was be—a
60(b) appeal motion—and would dismiss 60(b) jurisdiction. When a Rule
for lack filed, opposing side should be
motion is
M.D.,
REES,
Richard
Plaintiff
strategy
J.
plan
able to
its affairs and
Appellee,
time
not
expectation
appeal
will
If
this case were treated
extended.
v.
60(b)motion,
appeal from a
of Rule
denial
CARE,
HEALTH
INTERMOUNTAIN
clearly
filed too
the notice
INC.,
Hospital,
McKay-Dee
dba
late.
Appellant.
Defendant and
Nevertheless,
agree
general
I
that as
No. 890170.
is
proposition motion to reconsider
cases,
prior
simply nullity.
e.g., Peay
Supreme Court of Utah.
1980);
rules of Those cases only specifically those motions men- procedure in the rules of are valid
tioned course, That, of is incorrect.
motions. time,
From time at all courts levels specifically
entertain motions are proce- the rules of
dure. A is a formal device re- action,
quest judicial and a motion for re- simply asking means
consideration is ruling. judge
a trial to reconsider a Clear- might
ly, a motion to serve a reconsider variety in a circum-
useful function However, once a final
stances. entered, the time for commences specified entry,
from the date of unless *9 toll
post-trial motions are filed which taking
running 30-day period for an Appel- Rule Utah Rules of See Although majority
late Procedure.
opinion departs prior somewhat case
law, although appropri- I think that is truly
ate when motion reconsider as a or amend the
treated motion alter every I
judgment, would allow automatically extend the reconsider taking
time for