This is a debate about what had been a settled point regarding attorneys fees on appeal.

The opinion affirms the denial of a motion to set aside a default judgment. That part is of no interest or importance. The opinion is published because the dissent wants to vent about attorneys fees. (The rule about publishing only the publishable part apparently doesn’t apply when its only a dissent that raises something publishable. But we don’t like that rule anyway, so we’re not complaining.)

Ezell, the winning party, asked for fees on appeal but cited no authority for it. That has happened many times before and the courts routinely deny the request, in a sentence or two, for that reason. This court does so, too. But Judge Gemmill must have had an epiphany, or woke up on the other side of the bed that morning, or really doesn’t like Mr. Quon, or something.

He dissents, arguing that ARCAP 21(c)(1) – request for fees to be made in the brief – doesn’t specifically require a statement of a basis for them. Requiring a basis is a “trap” for the “unwary.” If the basis for fees is “readily ascertainable” – i.e., if the party mentioned it in the court below, as Ezell had – then the court should consider it, among other “factors” such as whether the trial court awarded fees. Anything else is a “mechanical approach.”

The majority’s position is in essence that Rule 21 is a procedural rule; it governs when to say something, not what to say. The majority cites a dozen cases in the last fifteen years or so that required a statement of the basis for fees; the Appellate Handbook and Attorneys’ Fee Manual also state the requirement. And the majority politely suggests that there is a difference between the “unwary” lawyer who falls into “trap” and one who just hasn’t paid attention.

The majority fails to appreciate that paying attention can be so drearily mechanical, far less artistic than making a basic mistake and then convincing a judge to feel sorry for you that you made it.

The dissent agrees, though,  that requiring an explanation of the basis for fees would be a good idea. In a footnote, it says “a rule change is respectfully suggested” to include the requirement specifically. Supreme Court Rule 28 explains how to go about requesting a rule change; mysteriously, it doesn’t include making footnotes in dissents. Perhaps that’s another thing that people are “unwary” of. Or perhaps the rules apply only to mere lawyers.

(link to opinion)