In re Trust of West (CA2 7/1/20)

These Plaintiffs vaulted over a high bar then tripped over a low one they set up themselves.

They successfully sued to set aside a trust amendment for undue influence. Having prevailed, they applied for fees on various grounds. Defendant objected because Plaintiffs had not requested fees in their petition as required by Rule 54(g). The trial court awarded fees under the common-fund doctrine. Defendant appeals that order.

The Court of Appeals vacates it. The rule says that a claim for fees “must be made in the pleadings” or in  a Rule 12 motion. The rule is mandatory, unambiguous, and makes no exception for fees awarded in equity. (Rule 54(i) does provide for two exceptions — fees awarded as sanctions and fees that must be proved at trial as a substantive element of the claim — but neither applied here.) Plaintiffs did mention fees in their initial disclosure statement but that is insufficient; the purpose of the rule — to encourage settlement — requires that parties be put on notice of the claim “before each stage of the law suit” (quoting Wagenseller 1985, emphasis in original). Plaintiff’s catchall prayer — for ““such other and further relief as the Court deems appropriate under the circumstances” — did not put Defendant on notice. (Once upon a time the formula was “such further relief as the court deems proper” but modern scoring awards bonus points for extra words. Those who know just enough to choose between the two forms are confident that the longer one must be stronger and more sophisticated and protect them in a number of circumstances, though they can’t name any.)

(Opinion: In re the Restated Trust of Crystal H. West)