William R. Fix v. Frank Forelle

IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 79

APRIL TERM, A.D. 2014

June 18, 2014

WILLIAM R. FIX,

Appellant
(Counter-Plaintiff),

v. S-13-0202

FRANK FORELLE,

Appellee
(Counter-Defendant).

Appeal from the District Court of Teton County
The Honorable James L. Radda, Judge

Representing Appellant:
William R. Fix, pro se.

Representing Appellee:
Anna M. Reeves Olson and Weston W. Reeves of Park Street Law Office, Casper,
Wyoming.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] This appeal arises out of a controversy between neighbors William Fix, Appellant,
and Frank Forelle, Appellee, concerning the construction of a fence along the border of
their adjoining properties. After prevailing on his claim in the district court, Mr. Fix, an
attorney who represented himself in the matter, claimed that he was entitled to attorney
fees according to the terms of the covenants at issue. The district court disagreed and Mr.
Fix appealed. We find that because Mr. Fix did not incur any fees, he is not entitled to an
award of fees. We therefore affirm.

ISSUE

[¶2] The issue presented by Mr. Fix is whether the district court erred in failing to
award him attorney fees.

FACTS

[¶3] The parties in this case are neighbors in the South Wilderness Ranches
Subdivision in Teton County, Wyoming. In 2008, Mr. Forelle built a fence on his
property along the boundary between his property and Mr. Fix’s property. Mr. Fix
complained to the Homeowners’ Association (HOA) that the fence violated the
subdivision’s covenants, but the HOA failed to enforce the covenants. In response, Mr.
Fix refused to pay his HOA assessments. The HOA then filed suit, seeking to recover
payment for the delinquent assessments. Mr. Fix, an attorney who appeared pro se, filed
a counterclaim seeking a determination that the fence violated the covenants.1

[¶4] The district court severed Mr. Fix’s counterclaims against the HOA and Mr.
Forelle and considered the HOA’s claims against Mr. Fix. It entered judgment against
Mr. Fix and in favor of the HOA, awarding the HOA payments due. The district court
also awarded prejudgment interest, costs, and attorney fees to the HOA, relying upon
language in the covenants stating, “[a]ny Lot Owner who uses or allows his or her Lot to
be used or developed in violation of these Covenants further agrees to pay all costs
incurred by the Design Committee or other Lot Owner in enforcing these Covenants,
including reasonable attorney’s fees.” Mr. Fix appealed and that portion of the case was
affirmed in Fix v. South Wilderness Ranch Homeowners Ass’n, 2012 WY 96, 280 P.3d
527 (Wyo. 2012).

[¶5] The district court addressed the remaining claims, including Mr. Fix’s
counterclaims, and granted summary judgment in favor of Mr. Fix on his claim that the

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The circuit court certified the case to the district court after concluding it no longer had jurisdiction over
the matter. The district court then assigned circuit court Judge Radda to the case.
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fence violated the covenants prohibiting the construction of boundary fences. The district
court conducted a jury trial on the remaining issues, including Mr. Fix’s claim for
damages with respect to the construction of the fence and Mr. Forelle’s claim for
trespass. The jury awarded $400 to Mr. Forelle on the trespass claim and $500 to Mr. Fix
on the fence claim.

[¶6] Subsequently, again relying upon the covenant provision regarding reimbursement
for costs incurred in enforcing the covenants, the district court awarded Mr. Fix attorney
fees in the amount of $19,158.75, which included $18,958.75 for Mr. Fix’s time and $200
attributable to another attorney hired by Mr. Fix to assist with the summary judgment
motion. Mr. Forelle then filed a motion to alter or amend the judgment, pursuant to
W.R.C.P. 59(a)(3), (6) and (8) and W.R.C.P. 60(b)(1) and (6), claiming that he had never
received Mr. Fix’s attorney fee affidavit, and arguing that, as an attorney representing
himself pro se, Mr. Fix was not entitled to attorney fees, and his fees were unreasonable.
The district court held a hearing on the issue, granted the motion, and entered an
amended judgment. In the amended judgment, the district court concluded that Mr. Fix
could not recover fees for the legal work he performed because he “appeared pro se and
did not actually incur any fees.” Mr. Fix’s appeal of that decision is now before this
Court.2

STANDARD OF REVIEW

[¶7] The question of whether Mr. Fix is entitled to attorney fees is a question of law,
reviewed by this Court de novo. Whether a contract is ambiguous is a question of law for
the reviewing court. Prudential Preferred Properties v. J and J Ventures, Inc., 859 P.2d
1267, 1271 (Wyo. 1993). We review questions of law de novo without affording
deference to the decision of the district court. Carlson v. Flocchini Invs., 2005 WY 19,
¶ 9, 106 P.3d 847, 852 (Wyo. 2005); Hermreck v. UPS, 938 P.2d 863, 866 (Wyo. 1997);
Griess v. Office of the Attorney Gen., Div. of Criminal Investigation, 932 P.2d 734, 736
(Wyo. 1997).

DISCUSSION

[¶8] Generally, prevailing parties are not entitled to the recovery of attorney fees absent
statutory or contractual authorization for the award of such fees. Y-O Invs., Inc. v.
Emken, 2006 WY 112, ¶ 8, 142 P.3d 1127, 1130 (Wyo. 2006) (“[W]e subscribe to the
American rule, under which a prevailing party may be reimbursed for its attorney fees
when express statutory or contractual authorization exists for such an award.”) (citing
Alexander v. Meduna, 2002 WY 83, ¶ 49, 47 P.3d 206, 220-21 (Wyo. 2002)); Wagon
Wheel Village, Inc. v. Harris, 993 P.2d 323, 326 (Wyo. 1999).

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The portion of the decision awarding $200 in fees to the attorney hired by Mr. Fix is not at issue here.
In addition, Mr. Forelle filed a cross-appeal which he has subsequently withdrawn.
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[¶9] Here, the authority for the recovery of attorney fees is found in the subdivision
covenants, which provide:

8. Violations – Enforcements – Costs. The restrictions,
limitations and requirements for land use and development set
forth in these Covenants shall be enforceable by the Design
Committee or any Owner of a Lot within the Property. . . .
Any Lot Owner who uses or allows his or her Lot to be used
or developed in violation of these Covenants further agrees to
pay all costs incurred by the Design Committee or other Lot
Owner in enforcing these Covenants, including reasonable
attorney’s fees.

[¶10] Mr. Fix takes the position that this provision entitles him to recover fees for the
time he spent as a pro se attorney successfully enforcing the covenants. Mr. Forelle, on
the other hand, argues that pro se litigants are not entitled to recover attorney fees and
that there should be no exception made for attorneys when they act to represent
themselves.

[¶11] This Court has considered the question of whether a pro se litigant can recover
attorney fees in the case of State ex rel. Scholl v. Anselmi, 640 P.2d 746 (Wyo. 1982).
There, the appellant had appeared pro se throughout the case and sought to recover
attorney fees pursuant to 42 U.S.C.A. § 1988, which provides that in certain civil rights
contexts, the courts may provide attorney fees to the prevailing party. The purpose of the
§ 1988 attorney fee provision “is to encourage those who otherwise could not afford legal
counsel to hire professional assistance, rather than forego their ‘day in court.’” Scholl,
640 P.2d at 750. In Scholl, the appellant, who was not an attorney, decided to act on his
own rather than hire an attorney. As a result, we concluded that he was merely seeking
recovery for the time he spent on the case, not for time spent by an attorney or legal fees
that he had incurred, and was not entitled to recover under the attorney fee provision of
§ 1988. Id. at 751.

[¶12] Here, however, the pro se litigant is an attorney who devoted his own time,
training, and resources to represent himself. There is no doubt that an attorney who
represents himself has provided a service with a marketable value. The question of
whether that attorney is entitled to attorney fees to the same extent as a lay person
employing independent counsel is one of first impression for this Court.

[¶13] Other courts examining the question have split. C. Clifford Allen, III, Annotation,
Right of Party Who is Attorney and Appears for Himself to Award of Attorney’s Fees
Against Opposing Party as Element of Costs, 78 A.L.R.3d 1119 (1977). Some courts

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that have concluded that a pro se attorney may not recover attorney fees rely upon the
notion that a pro se attorney does not become liable for fees charged by an attorney and,
as a result, ought not be entitled to fees. See Calhoun v. Calhoun, 529 S.E.2d 14, 17
(S.C. 2000) (An attorney who appears on his or her behalf does not owe another person
money for legal services rendered.); Lisa v. Strom, 904 P.2d 1239, 1243 (Ariz. Ct. App.
1995) (Attorney fee award requires “a genuine financial obligation on the part of the
litigants to pay such fees.”). Other courts that have concluded pro se attorneys may not
recover fees rest their decision on the concern that allowing an attorney to recover his
own fees would result in protracted litigation for the attorney’s financial gain. See
Connor v. Cal-Az Props., Inc., 668 P.2d 896, 899 (Ariz. Ct. App. 1983); Crooker v.
United States Dep’t of Justice, 632 F.2d 916, 920-21 (1st Cir. 1980). Still others have
reasoned that attorney fees are not available to pro se attorneys because by not hiring
independent counsel they do not have a “detached and objective perspective.” See
Swanson & Setzke, Chtd. v. Henning, 774 P.2d 909, 912 (Idaho Ct. App. 1989) (citing
Falcone v. Internal Revenue Serv., 714 F.2d 646, 647 (6th Cir. 1983); White v. Arlen
Realty & Dev. Corp., 614 F.2d 387 (4th Cir. 1980), cert. denied, 447 U.S. 923, 100 S.Ct.
3016, 65 L.Ed.2d 1116 (1980)).

[¶14] On the other hand, courts allowing pro se attorneys to recover legal fees base their
decisions on the rationale that although an attorney representing himself may not have
any cash outlay as he would if he had hired independent counsel, “he still incurs
continuing overhead costs and further pecuniary loss when his attention is diverted from
matters from which he could be earning compensation.” Zick v. Krob, 872 P.2d 1290,
1296 (Colo. App. 1993); see also Friedman v. Backman, 453 So.2d 938, 938 (Fla. Dist.
Ct. App. 1984). Courts allowing recovery have also looked to the impact on the party
required to pay the fees. They reason that it makes no difference to the party paying the
fees whether the attorney is the prevailing party or an independent attorney hired by the
party.

It can make no difference to the defeated party, who is bound
to pay the costs of the attorney of the prevailing party . . .
whether that attorney is the prevailing party himself or
another attorney employed by him. He, like any other
professional . . . is paid for his time and services, and if he
renders them in the management and trial of his own cause it
may amount to as much pecuniary loss or damage to him as if
he paid another attorney for doing it.

Winer v. Jonal Corp., 545 P.2d 1094, 1096-97 (Mont. 1976) (citation omitted). Finally,
they have noted that the pro se attorney is governed by professional rules of ethics
requiring them to document their fees and requiring fees to be reasonable, thus
eliminating concerns about overbilling to line their own pockets. Zick, 872 P.2d at 1296.

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[¶15] We will not answer the question of whether a pro se attorney can recover legal
fees in general at this time. Even assuming a pro se attorney in Wyoming might
generally be entitled to recover legal fees where provided by statute or contract, we must
look to the language of the statute or contract to determine whether fees are recoverable
in any given case. Here, because Mr. Fix did not “incur” any legal fees, he cannot
recover.

[¶16] The covenants provide that any lot owner who violates the covenants “agrees to
pay all costs incurred by the Design Committee or other Lot Owner in enforcing these
Covenants, including reasonable attorney’s fees.” (Emphasis added.) Our standards for
interpretation of language contained in restrictive covenants are well established:

Restrictive covenants are contractual in nature and are
interpreted in accordance with principles of contract law.
Omohundro v. Sullivan, 2009 WY 38, ¶ 9, 202 P.3d 1077,
1081 (Wyo. 2009); Goglio v. Star Valley Ranch Ass’n, 2002
WY 94, ¶ 18, 48 P.3d 1072, 1079 (Wyo. 2002). The court’s
goal is to determine and effectuate the intention of the parties,
especially the grantor or declarant. Stevens v. Elk Run
Homeowners’ Ass’n, Inc., 2004 WY 63, ¶ 13, 90 P.3d 1162,
1166 (Wyo. 2004). Our analysis starts with a determination
of whether the contractual language is clear or ambiguous.
Asherman v. Asherman, 2009 WY 141, ¶ 8, 221 P.3d 302,
304 (Wyo. 2009). We give the words their plain and ordinary
meaning, Omohundro, ¶ 9, 202 P.3d at 1081, and consider the
whole document, rather than just one clause or paragraph.
Stevens, ¶ 13, 90 P.3d at 1166. “An ambiguous contract ‘is
an agreement which is obscure in its meaning, because of
indefiniteness of expression, or because a double meaning is
present.’” Brockway v. Brockway, 921 P.2d 1104, 1106
(Wyo. 1996), quoting Amoco Prod. Co. v. Stauffer Chem.
Co., 612 P.2d 463, 465 (Wyo. 1980). If the contractual
language is clear, the court interprets it as a matter of law and
summary judgment is appropriate. If contract language is
ambiguous, a question of fact is presented and summary
judgment typically is not warranted. See, Wadi Petroleum,
Inc. v. Ultra Resources, Inc., 2003 WY 41, ¶ 10, 65 P.3d 703,
707 (Wyo. 2003); Amoco Prod. Co. v. EM Nominee
Partnership Co., 2 P.3d 534, 539-40 (Wyo. 2000).

Fayard v. Design Comm. of Homestead Subdivision, 2010 WY 51, ¶ 12, 230 P.3d 299,
303 (Wyo. 2010).

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[¶17] Thus, we must examine the contract language to determine whether the fees at
issue here are recoverable. In particular, we look to the meaning of the term “incurred”
to determine whether Mr. Fix is entitled to recover attorney fees for the work he
performed. The term “incur” is defined as “[t]o become liable or subject to.” Webster’s
II New College Dictionary 576 (3d ed. 2005); Webster’s Third New International
Dictionary, 1146 (2002) (defining “incur” as “1 : to meet or fall in with . . . become liable
or subject to . . . bring down upon oneself . . . 2 : to render liable or subject to”). This
term is not susceptible to more than one meaning and, therefore, it is not ambiguous. See
Whitney Holding Corp. v. Terry, 2012 WY 21, ¶ 14, 270 P.3d 662, 666 (Wyo. 2012).

[¶18] Because Mr. Fix was never liable for or subject to his own attorney fees, he did
not incur any fees. As a result, according to the plain language of the covenants, he is not
entitled to recover attorney fees for the work he performed in the litigation.

[¶19] We therefore affirm the district court’s Amended Judgment.

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