JOHN THORKILDSEN V. MARGOT BELDEN, and FISH CREEK DESIGN, LLC
2010 WY 17
223 P.3d 1291
Case Number: S-09-0154
Decided: 02/19/2010

OCTOBER TERM, A.D. 2009

JOHN THORKILDSEN,

Appellant
(Defendant),

v.

MARGOT BELDEN, and FISH CREEK DESIGN, LLC,

Appellees
(Plaintiffs).

Appeal from the District Court of Teton County

The Honorable Nancy J. Guthrie, Judge

Representing Appellant:

David G. Lewis of Jackson, Wyoming.

Representing Appellees:

Richard J. Mulligan of Mulligan Law Office; Heather Noble of Jackson, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[1]      John Thorkildsen (Thorkildsen) appeals from the district courts Order Granting Defendants Motion for Costs, arguing that the district court erred in not including an award for attorneys fees.  Finding no contested issue on appeal in regard to costs, and being unable to determine the district courts resolution of the issue of attorneys fees, we will remand with instructions for the district court to make findings of facts and conclusions of law relating to an award or denial of attorneys fees.

ISSUE

[2]      Whether the district courts failure to address attorneys fees in its Order Granting Defendants Motion for Costs presents this Court with a contested issue for review?

FACTS

[3]      The facts and procedural history of this case are more complex than the resolution of the single issue presented on appeal.1  This case has been before this Court on two prior occasions.  See Belden v. Thorkildsen, 2007 WY 68, 156 P.3d 320 (Wyo. 2007) (Belden I);  Belden v. Thorkildsen, 2008 WY 145, 197 P.3d 148 (Wyo. 2008) (Belden II).  Following Belden II, Thorkildsen filed a Motion of Defendants for Award of Attorney Fees and Costs, seeking an award of attorneys fees in the amount of $77,475 and costs in the amount of $2,070.09.2  Thorkildsens request was pursuant to a provision in an LLC Operating Agreement (Agreement), which was the focus of the litigation in Belden I and Belden II.  The Agreement allowed for the recovery of attorneys fees and costs by a prevailing party forced to defend a suit alleging breach of the Agreement.  The appellees opposed the request arguing that the fees sought were not limited to those incurred litigating damage claims under the LLCs Operating Agreement and that Thorkildsen failed to segregate the fees incurred litigating issues encompassed by the contractual attorneys fees provision from fees incurred litigating other issues.  In response to Thorkildsens motion, the district court entered an Order Granting Defendants Motion for Costs.  As the title of the district courts order implies, the order only awarded costs in the amount of $2,070.90, and wholly failed to address the attorneys fees issue.  Thorkildsen now appeals from that order.

DISCUSSION

[4]      Thorkildsen argues that the district courts order awarding costs but failing to address or award attorneys fees amounted to an implicit denial of an award of attorneys fees and such action was error.  Thorkildsen fails to cite any case law to support his argument that the district courts failure to address attorneys fees amounts to an implicit denial.  Thorkildsens argument appears to be one founded in W.R.C.P. 6(c)(2), which rule dictates that certain motions be deemed denied if not acted on by the district court within 90 days of being filed.  However, W.R.C.P. 6(c)(2) provides only that motions filed pursuant to Rules 50(b) and (c)(2), 52(b), 59 and 60(b), not determined within 90 days after filing shall be deemed denied . . . .  A motion for costs and attorneys fees does not fall within any of the rules which are subject to the deemed denied provision in W.R.C.P. 6(c)(2).  Consequently, we find unpersuasive Thorkildsens argument that the portion of his motion pertaining to attorneys fees was implicitly denied or deemed denied by the district courts failure to address attorneys fees in its order awarding costs. 

[5]      Because the district courts Order Granting Defendants Motion for Costs only addresses costs, the district court made no findings of facts and reached no conclusions of law with respect to attorneys fees.  Thus, Thorkildsen has been left to appeal only from an award of costs that he does not challenge.  We find the appropriate remedy is to remand this case to the district court with instructions to make appropriate findings of facts and conclusions of law relating to the issue of attorneys fees.3

FOOTNOTES

1In an attempt to simplify the factual history of this case we have left out several facts.  However, none of the factual omissions are material to the outcome of this case.

2We note that in his affidavit filed concurrently with his motion, Thorkildsen lists numerous items and their corresponding costs for which he sought reimbursement and determined the total cost of these items to be $2,070.90; however, we calculated that total to be $2,020.09.  This mathematical anomaly is inconsequential to our decision as the parties do not contest the district courts award of costs.

3We take this opportunity to note one particular issue that the district court must resolve with respect to an award of attorneys fees.  If in fact the appellant is entitled to attorneys fees under the Agreement, a determination must be made as to which fees were attributable to actions or claims relating to the Agreement between the parties and which, if any fees, were related to other legal services, as segregation of fees is required when possible.  See Jensen v. Fremont Motors Cody, Inc., 2002 WY 173, 33, 58 P.3d 322, 330 (Wyo. 2002).

Citationizer Summary of Documents Citing This Document