Cook v. Grebe (9/11/18)

This little case, in addition to illustrating practice pointers about fee requests that apparently need  illustrating, is an example of how judicial fashion changes. Thirty years ago this opinion might have been tossed out in three pages, especially in Division Two. Ten years ago it would have taken twelve. This year it takes just over six, which is about right.

Plaintiff claimed adverse possession and also sued for a private nuisance. Defendant counterclaimed to quiet title and also alleged conversion, unjust enrichment, and trespass. Defendant won the adverse possession/quiet title issues, Plaintiff the rest.  (One of the ways the opinion saves space is to omit the underlying facts. They have nothing to do with the issue on appeal but even a few years ago that would not have prevented a factual recitation equally lengthy and useless.)

Defendant then moved for an $82,000 fee award under 12-1103 (quiet title). Plaintiff objected, arguing that Defendant wasn’t the prevailing party — that the case was basically a “draw” — and that she shouldn’t recover fees for claims Plaintiff won. The trial court found Defendant entitled to fees under 1103 and awarded $50,000.

The Court of Appeals affirms. Under 1103 “the determination of who is the prevailing party . . . turns on whether a party successfully quieted title, regardless of whether claims that do not involve quieting title are included in the same lawsuit.”

Now the practice pointers.  Fees under 1103 are discretionary — but the court notes that Plaintiff didn’t argue that. His argument wasn’t that, even if Defendant were the prevailing party, the trial court should use its discretion under these circumstances to deny fees.  (Is the court’s mentioning this the sort of we’re-smarter-than-you comment that we complained about the other day? Not really; the case discussed the court’s discretion and it’s fair to mention that the full extent of that discretion was not requested. And the court’s comment was, perhaps deliberately, worded in a slightly elliptical fashion.)

Instead Plaintiff argued vaguely that the amount of the request was unreasonable, without analyzing Defendant’s China Doll affidavit and pointing out which fees were unreasonable or unrelated to quiet title. Defendant showed nothing in the record to indicate that the trial court abused its discretion.

Of course the fact that the trial court awarded only about 40% of the requested fees killed this appeal once the prevailing-party issue was decided. What did Defendant say about that reduction? More of the above but also that it was arbitrary because “neither party argued for a 40% reduction.” Which adds a final practice pointer: any ill-considered idiocies floated in your brief or at oral argument will quite likely be used against you in an appellate court of law.

(Opinion: Cook v. Griebe)