# Dixie State Bank v. Bracken > Utah Supreme Court · October 25, 1988 · 94 Utah Adv. Rep. 3 URL: https://www.frixlaw.com/law-library/cases/9542911 ## Case - **Full name:** DIXIE STATE BANK, a Utah Corporation, Plaintiff and Appellant, v. Kirk BRACKEN and Linford Bracken, Defendants and Appellees - **Court:** Utah Supreme Court - **Decided:** October 25, 1988 - **Citations:** 94 Utah Adv. Rep. 3; 764 P.2d 985; 1988 Utah LEXIS 102; 1988 WL 115242 - **Precedential status:** Published - **Opinion:** Dissent by Howe - **Judges:** Howe, Hall, Durham, Zimmerman, Stewart, Orme - **Cited by:** 152 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9542911 ## How later opinions describe it (automated extraction) - stating that, at a minimum, trial courts should consider the amount of "legal work" that "was actually performed," what portion of the work "was reasonably necessary to adequately prosecute the matter," whether "the attorney's billing rate [is] consistent with the rates custom… - noting that questions relevant to the determination of whether attorney fees are reasonable include (1) what work was actually performed, (2) was the work necessary to prosecute the matter, (8) the reasonableness of the billing rate, and (4) whether other cireumstances exist t… - explaining that we review the calculation of reasonable attorney fees for an abuse of discretion ## Opinion text HOWE, Associate C.J. (dissenting): I dissent. The majority opinion misinterprets the trial court’s finding on attorney fees and then proceeds to erroneously define as an issue whether the trial court erred in “awarding substantially less than what it determined was a reasonable fee.” The majority’s error stems from a finding of fact made by the trial court which is confused and ambiguous on its face and should be interpreted in light of the judge’s bench ruling at the end of the trial. Finding of fact No. 18, as it was prepared by counsel for plaintiff and submitted to the trial judge for signature, stated: The Court finds that the amount of attorney’s fees claimed of $4,747.50, though reasonable in all regard, constitutes a sum approximating the debt due on the note, absent any assessment for attorney’s fees. However, before the judge accepted that finding, he added in his own handwriting the following: *992 And from the testimony and the file the court finds $1,500.00 is a reasonable fee to be assessed against defendants. On its face, the court finds both $4,747.50 and $1,500 to be a reasonable fee. That obviously cannot be correct, and resort must be had to the judge’s pronouncement from the bench when he fixed the amount of the fees. He then explained that he did not dispute that plaintiffs attorney had expended the hours on the case which he claimed and did not dispute that the hourly rate charged by plaintiffs attorney was reasonable. He commented that looking only at those two factors, the $4,747.50 requested by plaintiffs attorney was reasonable. However, he hastened to observe that “the Court would find the fees must have some reasonable relationship to the amount that can be gained or whatever potentially could be lost.” The judge further observed that defendants’ attorney (who had to carry the burden of proof on the counterclaim which presented the only issue in the case) testified that his fees would only be $1,200. To further explain why the court was fixing the fees at $1,500, he gave counsel the following example: Let me say this to you: You can take two little toy cars out and wreck them in the middle of the Courtroom and have all of the people in here witness it, then take all of their depositions and prepare for trial and jury instructions and take the time of the Court, and the lawyers can do all those things. And when you get down to it, you can try the suit on the same basis and principle that would apply in any kind of case of similar kind. But keep in mind it was just little toy cars out there. And so I find that in this case ... the attorney fee is in relationship to the amount to be assessed against the defendant. When counsel for plaintiff protested that the $1,500 fee was low, the court stated: I want in the findings of fact that the initial mistake was made by the bank.... Well, I want the original mistake to be placed on the part of the bank. Thus, the record before us makes it abundantly clear that the trial judge was influenced in setting the fee at $1,500 because of the small amount sued upon by plaintiff and the fact that plaintiff’s mistake with its computer precipitated the litigation. The amount sued upon by the bank was $3,858.84. By the time judgment was recovered, accrued interest at the rate of 14 percent per annum had made the amount owing to plaintiff $4,748.39. The majority opinion states that the trial court found that a fee of $4,747.50 was a reasonable fee and then concludes that it is a “mistake of law” or the court “commits legal error” if it awards a lesser amount. That simply did not happen here where the trial judge, without questioning the hours spent and the reasonableness of the hourly rate, found and wrote in his own handwriting that under all of the circumstances, $1,500 was a reasonable fee. Thus, the only issue for us to determine in this case is whether he abused his discretion in fixing the fee at that amount. I agree with the majority that the trial court erred in giving weight to the fact that an error by the plaintiff bank gave rise to this litigation. The bank error was so obvious that defendants could not have reasonably relied on it and become misled. The majority opinion also correctly states that what an attorney bills for the number of hours spent on a case is not determinative and that the amount in controversy or, stated another way, the relationship of the fee to the amount recovered is a factor which should be considered by the trial judge. Traynor v. Cushing, 688 P.2d 856, 858 (Utah 1984); Wallace v. Build, Inc., 16 Utah 2d 401, 405 , 402 P.2d 699, 701 (1965). However, by holding that plaintiff should have been awarded the whole $4,747.50 claimed, the majority gives no weight at all to this factor. See Utah Code of Professional Responsibility DR2-106, set out in full in Cabrera v. Cottrell, 694 P.2d 622, 624-25 (Utah 1985), which also lists “the amount involved and the results obtained” as a factor to be considered by the court in determining the reasonableness of a fee. In fact, the majority, by listing the four questions for which the trial court should *993 find answers, minimizes this important factor. In an attempt to justify the $4,747.50 fee, the majority refers to the efforts of bank’s counsel to defend against the counterclaim. The difficulty with that reference is that attorney fees are recoverable only for legal expenses in collection on the promissory note and not for defending counterclaims which may be interposed by a debtor in the suit on the note. Stubbs v. Hemmert, 567 P.2d 168, 171 (Utah 1977); Nelson v. Newman, 583 P.2d 601, 603-04 (Utah 1978). Here, the counterclaim was for the alleged malicious, tortious acts of the bank. The prayer for $200,000 was for punitive damages on account of the tort. Clearly, the bank is not entitled to attorney fees for defending a tort claim by defendants, and the majority errs in its reliance on that factor in attempting to justify the higher fee. The majority recognizes that the calculation of a reasonable fee is in the sound discretion of the trial court and will not be overturned in the absence of a showing of a clear abuse of discretion and cites case law in support thereof. One such case is Beckstrom v. Beckstrom, 578 P.2d 520, 524 (Utah 1978), where the attorney testified that a reasonable fee would be $800, but the trial court awarded only $500. On appeal, we upheld the award, explaining that although the evidence is undisputed, the trial judge was not necessarily compelled to accept such self-interested testimony whole cloth and make such an award; and in the absence of patent error or a clear abuse of discretion, this Court will not disturb his findings and judgment. The majority also cites Alexander v. Brown, 646 P.2d 692, 695 (Utah 1982), where this Court affirmed a trial court’s award of attorney fees which was a compromise figure between two estimates of what was a reasonable fee. Yet in the instant case, the majority denies the trial court that same broad discretion and orders a substantially higher fee than the court fixed. The majority cites no case, and I have been unable to find any case where this Court has so disturbed a trial court’s discretion to set a fee. In the instant case, the bank sued for $3,858.84 plus interest. The requested fee was $4,747.50, which the judge reduced to $1,500 because an error of the bank gave rise to the dispute and because of the small amount owing on the note. Since the court’s reliance on the error made by the bank was misplaced, I would remand this case to the trial court to have the fee fixed absent consideration of the bank’s error. STEWART, J., does not participate herein; GREGORY K. ORME, Court of Appeals Judge, sat. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9542911. Public record. Not legal advice.