Harold H. Dishman v. First Interstate Bank

IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 154

OCTOBER TERM, A.D. 2015

December 8, 2015

HAROLD H. DISHMAN,

Appellant
(Defendant),

v. S-15-0039

FIRST INTERSTATE BANK,

Appellee
(Plaintiff).

Appeal from the District Court of Albany County
The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:
Mitchell H. Edwards and Julie M. Edwards of Nicholas & Tangeman, LLC,
Laramie, Wyoming. Argument by Mr. Edwards.

Representing Appellee:
Megan Overmann Goetz and Jodi D. Shea of Pence and MacMillan LLC,
Laramie, Wyoming. Argument by Ms. Goetz.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.

[¶1] The district court granted a partial summary judgment in favor of First Interstate
Bank (FIB) on its judicial foreclosure claim against Harold H. Dishman. The district
court later held a bench trial on FIB’s claim for attorney fees and granted most of FIB’s
requested fees and costs. Mr. Dishman appeals, claiming the district court violated the
rules of civil procedure by allowing FIB’s detailed billing statement into evidence when
the bank did not produce it until just before trial. Mr. Dishman also claims FIB’s request
should have been denied, in whole or in part, because the fees were unreasonable.

[¶2] We conclude FIB was required to produce its detailed billing statement in support
of the claim for attorney fees, but its failure to provide it earlier was harmless. Given FIB
failed to produce the detailed fee statement and did not follow the rules of civil procedure
in claiming the information was privileged, the fees associated with the efforts to
withhold the information were not reasonable, and the district court abused its discretion
by awarding them. The district court also abused its discretion by awarding fees incurred
in unnecessary and unproductive work. Furthermore, in the interests of equity, we reduce
the fees incurred by FIB after the summary judgment to account for its discovery
violations. We, therefore, affirm in part, reverse in part, and remand.

ISSUES

[¶3] The issues in this case are:

1. Whether the district court correctly interpreted and applied Wyoming Rules
of Civil Procedure 26 and 37 with regard to FIB’s obligation to disclose its detailed
attorney fee statement.

2. Whether the district court abused its discretion in awarding attorney fees to
FIB.

FACTS

[¶4] The underlying facts of this case are essentially undisputed. In 2004, Mr.
Dishman obtained a $20,000 line of credit from FIB, secured by a mortgage on his house
in Laramie, Wyoming. He renewed the loan in 2009. From March 2004 through January
2013, Mr. Dishman made all payments on the loan through automatic withdrawals from
his account at FIB.

[¶5] Mr. Dishman, who suffered from dementia, moved into a nursing home at the
Laramie Care Center (LCC). In December 2012, LCC submitted an application to have
his social security benefits redirected to pay some of the costs of his care. After the funds

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were diverted, the FIB account from which the automatic withdrawals for payment of the
loan were taken was closed, resulting in Mr. Dishman’s default on the loan.

[¶6] On October 4, 2013, FIB filed a complaint against Mr. Dishman for judicial
foreclosure, seeking the principal balance due on the loan of $14,831.50, together with
accruing interest, costs and attorney fees. FIB attempted various methods to obtain
service of process on Mr. Dishman, including personal service on him at the mortgaged
property, which was vacant; personal service on him at the nursing home, which was not
allowed by staff; personal service upon a staff member at the nursing home; and service
by publication.

[¶7] Mr. Dishman’s granddaughter, Lori Dow, was designated as his attorney in fact
under a Durable Power of Attorney signed by Mr. Dishman in 2004. Ms. Dow initially
did not respond to FIB’s efforts to contact her but, after receiving a November 19, 2013,
letter about the pending action, she contacted FIB and retained counsel to file an answer
on behalf of Mr. Dishman. The parties exchanged disclosures pursuant to W.R.C.P. 26,
and FIB served additional discovery requests upon Mr. Dishman. Although they did not
make any formal discovery requests, Mr. Dishman’s attorneys repeatedly asked FIB to
provide its detailed attorney fee statement so they could evaluate the attorney fees claim.
FIB provided verified statements of the attorney fee totals but did not provide the actual
billing statements.

[¶8] The case languished for some time while Mr. Dishman’s attorney in fact attempted
to sell the property and the parties looked into collateral matters, including the potential
that a Medicaid lien would be filed on the house. With the dispositive motion deadline
nearing, FIB filed a motion for summary judgment on all of its claims on July 29, 2014.
In response to the summary judgment motion, Mr. Dishman conceded he owed the
principal balance, accruing interest, late fees, annual fees, taxes, and insurance but
contested some of FIB’s specific claims, including the amount of accrued interest, a cost
described as a “lender’s foreclosure policy,” and attorney fees. Mr. Dishman objected to
the attorney fees request because FIB had not provided its itemized bills, making it
impossible to review the reasonableness of the fees.

[¶9] After considering the parties’ filings, the district court granted FIB a partial
summary judgment in the amount of $24,631.42, which included the principal due,
accrued interest, and most of FIB’s costs. The district court concluded, however, there
were genuine issues of material fact concerning the lender’s foreclosure policy and FIB’s
attorney fees request.

[¶10] FIB filed a motion for in camera review of its unredacted verified statement of
costs and attorney fees. It asserted in general terms that the billing statement included
confidential information protected by the attorney-client privilege. However, FIB never
pointed to any specific item in the billing which would have been privileged. FIB also

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filed an affidavit from an outside attorney stating its fees were reasonable in light of the
circumstances. On October 6, 2014, both parties filed trial summaries, which included
their lists of witnesses and exhibits. FIB’s trial summary did not include its unredacted
attorney fee statement. On October 7, 2014, the district court denied FIB’s motion for in
camera review of its unredacted attorney fee bills. On October 9, 2014, FIB
supplemented its exhibit list with the unredacted statement of fees and costs.

[¶11] The district court held a bench trial on the outstanding issues on October 14, 2014.
Mr. Dishman objected to admission of the unredacted fee statement because FIB did not
produce it as required by the rules of civil procedure. The district court overruled Mr.
Dishman’s objection and allowed FIB’s unredacted fee statement into evidence. FIB
later filed a supplemental statement to add the fees associated with the trial, bringing the
total amount of fees and costs requested by FIB to $20,615.49.

[¶12] The district court entered an order on November 18, 2014, granting FIB most of its
requested fees. The order stated, in relevant part:

19. [Mr. Dishman] raises the issue . . . that FIB
should not be permitted to present its attorney’s fees and costs
to this Court because it did not timely submit or disclose its
itemized billings. . . . In fact, FIB asserted that this material
was privileged and Dishman did nothing to challenge that
assertion. Ultimately, this Court held that the subject material
was not privileged and FIB promptly produced same. Mr.
Dishman had avenues of relief available to him long prior to
the trial herein, including seeking this Court’s order to
compel discovery, of which Mr. Dishman did not avail
himself. He cannot now be he[ard] to complain of FIB’s
assertion of privilege when he took no action to challenge and
from which he now seeks to benefit.
....

22. [T]he Court has reviewed the Verified Statement
of Attorney’s Fees and Costs, provided as Exhibit 24 herein,
as well as the Supplemental Verified Statement of Fees, filed
on October 20, 2014, and has considered the evidence and
testimony presented at trial. The Court has considered Mr.
Dishman’s Defendant’s Response in Opposition to Plaintiff’s
Supplemental Verified Statement of Fees, filed on November
4, 2014. It is mindful of the fact that Mr. Dishman is not
asserting that the hourly rate charged was “too high” but
simply contending that the amount of time/work invested in

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this foreclosure action is not reasonable, particularly where
the principal amount due was only $14,831.50.

23. This Court agrees with the parties that a
“simple” foreclosure matter would not, and should not,
approach anywhere near $15,000 in costs and attorney’s fees.
The Court also is empathetic to Mr. Dishman’s position that,
after loyally paying FIB for almost nine years, the cessation
of his monthly payments [was] beyond his control in that,
despite its knowledge of Mr. Dishman’s financial obligations
to FIB, the Laramie Care Center arranged for Mr. Dishman’s
social security payments to be paid directly to LCC, rather
than to FIB, apparently without Mr. Dishman’s knowledge or
consent. [footnote omitted]. This arrangement ultimately led
to Mr. Dishman’s default and, eventually, to this litigation.
Finally, the Court is cognizant of the fact that Mr. Dishman
now owes the State of Wyoming more than the likely value of
this property in that he owes approximately $173,000.00 for
Medicaid services provided to him and his deceased spouse,
Patricia Dishman.

24. However, this case was anything but simple.
Considering the complications involved in locating Mr.
Dishman; the issues concerning his potential incompetence;
Mr. Dishman’s significant equity in the property; dealing with
the vacancy of the property; addressing Medicaid/Medicare
concerns; the involvement of multiple attorneys and law firms
[for Mr. Dishman]; and the delays in resolution caused, in
part, by allowing Ms. Dow to attempt to sell the property, the
vast majority of the charge[d] fees and costs are reasonable
and were, indeed, necessary. This case involved complicated
issues, which took a significant amount of attorney time even
though the amount initially sought was relatively small, and
the rates charged were reasonable and customary. Overall,
this Court does not believe such amounts were unreasonable.

25. The only fees with which this Court takes issue
involve those incurred for the hiring and retention of Scott
Meier as an expert witness for the purpose of the
reasonableness of attorneys’ fees. Those amounts were: [list
of billing entries totaling $2,394.50].

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 26. The Court finds these amounts unnecessary in
light of Wyoming Statute § 1-14-126(b), which allows the
court discretion to award reasonable attorney’s fees “without
requiring expert testimony.”
....

29. The Court . . . awards a total of attorneys’ fees
and costs in the amount of $18,220.99 (the result of the
requested amount of $20,615.49 less the amounts associated
with Mr. Meier of $2,394.50).

(emphasis in original). Mr. Dishman filed a timely notice of appeal.

STANDARD OF REVIEW

[¶13] We review the question of whether the district court correctly interpreted the rules
of civil procedure de novo. Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840
(Wyo. 2015) (applying de novo standard of review to Rule 37 interpretation). The district
court’s decision awarding attorney fees is reviewed under the abuse of discretion
standard. Morrison v. Clay, 2006 WY 161, ¶ 16, 149 P.3d 696, 701 (Wyo. 2006). A
court abuses its discretion if it exceeds the bounds of reason under the circumstances.
Joe’s Concrete & Lumber, Inc. v. Concrete Works of Colorado, Inc., 2011 WY 74, ¶ 12,
252 P.3d 445, 448 (Wyo. 2011).

DISCUSSION

1. General Law on Attorney Fees Awards

[¶14] Wyoming subscribes to the American rule regarding recovery of attorney fees.
The rule makes each party responsible for its own fees unless an award is permitted by
contract or statute. Thorkildsen v. Belden, 2012 WY 8, ¶ 10, 269 P.3d 421, 424 (Wyo.
2012); Garwood v. Garwood, 2010 WY 91, ¶ 32, 233 P.3d 977, 984 (Wyo. 2010). The
party who is seeking an award of fees has the burden of proving the reasonableness of the
claimed fees. To meet that burden, the claimant must present an itemized billing
reflecting the time and the rate and evidence demonstrating the fee was reasonable. Tolin
v. State, (In re NRF), 2013 WY 9, ¶ 7, 294 P.3d 879, 882 (Wyo. 2013). See also Pekas v.
Thompson, 903 P.2d 532, 536 (Wyo. 1995). The claimant must show the “nature of the
service performed, the time expended, and the hourly fee customarily charged for such
service.” Ringolsby v. Johnson, 2008 WY 127, ¶ 17, 193 P.3d 1167, 1171 (Wyo. 2008),
quoting Jones Land & Livestock Co. v. Fed. Land Bank of Omaha, 733 P.2d 258, 265
(Wyo. 1987) (emphasis omitted). As part of his duty to claim only reasonable fees, an
attorney must exercise “billing judgment.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103
S.Ct. 1933, 1939–40, 76 L. Ed. 2d 40 (1983). “‘Billing judgment is usually shown by the

5
attorney writing off unproductive, excessive, or redundant hours.’” NRF, ¶ 9, 294 P.3d at
883-84, quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir.
2002). An affidavit from a party or an attorney stating only the total amount of fees and
that the amount is reasonable is not sufficient to satisfy the burden of proof. See, e.g.,
Meyer v. Travelers Ins. Co., 741 P.2d 607, 609 (Wyo. 1987); Greenough v. Prairie Dog
Ranch, Inc., 531 P.2d 499, 503-04 (Wyo. 1975).

[¶15] In determining the reasonableness of the fee request, Wyoming courts follow the
federal lodestar test, which requires a determination of “(1) whether the fee charged
represents the product of reasonable hours times a reasonable rate; and (2) whether other
factors of discretionary application should be considered to adjust the fee either upward
or downward.” Weiss v. Weiss, 2009 WY 124, ¶ 8, 217 P.3d 408, 410-11 (Wyo. 2009),
quoting Forshee v. Delaney, 2005 WY 103, ¶ 7, 118 P.3d 445, 448 (Wyo. 2005). The
district court has broad discretion in fashioning an attorney fee award. See, e.g.,
Garwood, ¶ 38, 233 P.3d at 986; Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 35, 297 P.3d
768, 779 (Wyo. 2013). Wyo. Stat. Ann. § 1-14-126 (LexisNexis 2015) provides a list of
factors the court may consider in determining an appropriate fee award:

(b) In civil actions for which an award of attorney’s fees is
authorized, the court in its discretion may award reasonable
attorney’s fees to the prevailing party without requiring
expert testimony. In exercising its discretion the court may
consider the following factors:
(i) The time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to perform
the legal service properly;
(ii) The likelihood that the acceptance of the particular
employment precluded other employment by the lawyer;
(iii) The fee customarily charged in the locality for similar
legal services;
(iv) The amount involved and the results obtained;
(v) The time limitations imposed by the client or by the
circumstances;
(vi) The nature and length of the professional relationship
with the client;

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 (vii) The experience, reputation and ability of the lawyer
or lawyers performing the services; and

(viii) Whether the fee is fixed or contingent.

[¶16] In exercising its discretion, the district court has the obligation to scrutinize the fee
application “with an experienced eye.” NRF, ¶ 9, 294 P.3d at 883, citing Foley v. City of
Lowell, Mass., 948 F.2d 10, 19 (1st Cir.1991). As part of that procedure, the district
court must “‘winnow out excessive hours.’” NRF, ¶ 9, 294 P.3d at 883, quoting Gay
Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir. 2001). Stated another
way, “‘[b]illing for legal services ... should not be a merely mechanical exercise.... [T]he
Court must scrutinize the claim with particular care.... A reasonable fee can only be fixed
by the exercise of judgment.’” Id., quoting Copeland v. Marshall, 641 F.2d 880, 888
(D.C. Cir. 1980).

[¶17] In addition, principles of equity apply to attorney fee awards. We have explained:
[w]hile the general rule is that a valid provision for attorney’s
fees in a [contract] is as much an obligation of the contract as
any part of it, the trial court still has discretion in exercising its
equitable control to allow only such sum as it thinks
reasonable. A trial court in its discretion may properly
disallow attorney’s fees altogether on the basis that such
recovery would be inequitable.
Grommet v. Newman, 2009 WY 150, ¶ 61, 220 P.3d 795, 817 (Wyo. 2009), quoting
Meyer v. Hatto, 2008 WY 153, ¶ 26, 198 P.3d 552, 557–58 (Wyo. 2008) (other citations
omitted).

2. Admission of FIB’s Attorney Fee Statement

[¶18] The credit agreement and the mortgage executed by Mr. Dishman allowed FIB to
recover its attorney fees for enforcement of the agreements. FIB’s complaint for judicial
foreclosure of the mortgage on Mr. Dishman’s property included a request for an award
of attorney fees. Given the claim for attorney fees, Mr. Dishman asserts FIB violated the
Wyoming rules of discovery by failing to produce its detailed attorney fees statement as
evidentiary support of its claim.

[¶19] W.R.C.P. 26 sets out the parties’ general discovery obligations and states in
relevant part:

(a) Required disclosures; methods to discover additional
matter. –

7
 (1) Initial disclosures. – Except in categories of
proceedings specified in Rule 26 (a) (1) (E), or to the extent
otherwise stipulated in writing or directed by order, a party
must, without awaiting a discovery request, provide to other
parties:
....
(B) A copy of, or a description by category and
location of, all documents. . . that are in the possession,
custody, or control of the party and that the disclosing party
may use to support its claims or defenses . . . ;
(C) A computation of any category of damages
claimed by the disclosing party, making available for
inspection and copying as under Rule 34 the documents or
other evidentiary material, not privileged or protected from
disclosure, on which such computation is based.
....

Unless a different time is set by stipulation in writing or by
court order, these disclosures must be made within 30 days
after a party’s answer is required to be served under Rule
12(a) . . . .

(b) Discovery scope and limits. – Unless otherwise limited by
order of the court in accordance with these rules, the scope
of discovery is as follows:

(1) – Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the claim or defense of the
party seeking discovery or to the claim or defense of any
party.
....

(5) Claims of Privilege or Protection of Trial Preparation
Materials. –

(A) Information Withheld. When a party withholds
information otherwise discoverable under these rules by
claiming that it is privileged or subject to protection as trial
preparation material, the party shall make the claim expressly
and shall describe the nature of the documents,
communications, or things not produced or disclosed in a

8
 manner that, without revealing information itself privileged or
protected, will enable other parties to assess the applicability
of the privilege or protection.
....

(c) Protective Orders. – Upon motion by a party or by the
person from whom discovery is sought . . . the court in which
the action is pending . . . may make any order which justice
requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,
including one or more of the following:

(1) That the disclosure or discovery not be had;
(2) That the disclosure or discovery may be had only
on specified terms and conditions, including a designation of
the time or place;
....

(4) That certain matters not be inquired into, or that the
scope of the disclosure or discovery be limited to certain
matters;
....

If the motion for a protective order is denied in whole or in
part, the court may, on such terms and conditions as are just,
order that any party or other person provide or permit
discovery. . . . The filing of a motion under [this rule] shall
stay the disclosure or discovery at which the motion is
directed pending further order of the court. . . . Counsel
seeking such relief shall request the court for a ruling or a
hearing thereon promptly after the filing of such motion, so
that disclosure or discovery shall not be delayed in the event
such motion is not well taken.

[¶20] Under Rule 26(a)(1)(B) & (C), a party is required to disclose, without waiting for
a discovery request, all documents which it may use to support its claims and a
computation of any category of damages claimed by the party, together with all
documents upon which the computation is based. Given FIB was claiming attorney fees,
it was required to provide the relevant information regarding its claim. See Tolin, ¶ 7,
294 P.3d at 882; Pekas, 903 P.2d at 536. An itemized billing statement, listing the nature
of the services performed, the time expended and the hourly rate is required to prove a
claim for attorney fees, and is, therefore, a required disclosure under Rule 26(a)(1)(B) &
(C), unless there is a basis to withhold it. Id. See also Ringolsby, ¶ 17, 193 P.3d at 1170.

9
[¶21] Rule 26 recognizes that certain information may be privileged or protected from
disclosure. However, under Rule 26(b)(5)(A), when a party withholds information
otherwise discoverable on the basis that it is privileged, the party must make the claim
expressly and describe the nature of the documents withheld in a “manner that . . . will
enable other parties to assess the applicability of the privilege or protection.” Often, this
information is provided via a privilege log. See generally, Williams v. Sprint United
Mgmt. Co., 238 F.R.D. 633, 645 (D. Kan. 2006) (interpreting analogous federal rule).
The party seeking to withhold the information may file a motion for a protective order
under Rule 26(c). When seeking a protective order, counsel is required to request a
hearing or ruling promptly after the motion is filed to avoid unduly delaying discovery.
Rule 26(c). The party asserting the privilege has the burden of establishing it applies.
Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992). See
generally, Aland v. Mead, 2014 WY 83, ¶ 77, 327 P.3d 752, 773 (Wyo. 2014)
(recognizing the State had burden of proving requested documents were protected by the
attorney-client privilege).

[¶22] The record in this case does not indicate that FIB provided a detailed attorney fee
statement or a privilege log as part of its initial disclosures. Indeed, FIB apparently did
not formally claim the information was privileged until after the district court granted the
partial summary judgment and ruled there were genuine issues of material fact regarding
the attorney fees claim. FIB finally asserted in its motion for in camera review of its
unredacted statement of costs and fees that the statement “contains confidential attorney-
client privileged information that Plaintiff does not waive.” Even that filing did not
satisfy the privilege log requirement of Rule 26(b)(5)(A) or constitute an appropriate
motion for a protective order under Rule 26(c).

[¶23] The district court eventually ordered disclosure of the attorney fee statement when
it denied FIB’s motion for in camera review, effectively rejecting FIB’s claim that the
attorney fee statement was privileged. The district court was correct. Attorney fee
statements are not privileged simply because they pertain to the attorney-client
relationship. Wyo. Stat. Ann. § 1-12-101 (LexisNexis 2015) generally describes the
privilege as including communications “made to [the attorney] by his client . . . in that
relation, or his advice to his client[.]” Attorney billing information often does not fall
within that definition. 81 Am.Jur.2d Witnesses § 379 states the general rule:

Typically, the attorney-client privilege does not extend to the
fee agreement, billing records, or expense reports. However,
although a simple invoice ordinarily is not privileged, billing
records may be protected by the attorney-client privilege
where they reveal the nature of the services rendered. . . .

All narrative statements in attorney fee statements are not
per se privileged; rather, parties claiming the privilege

10
 will have to show its application to particular narrative
statements in the billing records.

(emphasis added and footnotes omitted).

[¶24] In addition, by making a claim for attorney fees, a party generally waives the
attorney-client privilege and work product protections. 32B Am.Jur.2d Federal Courts §
2118. “[A] plaintiff waive[s] attorney-client privilege and work product protection with
regard to complete, unredacted bills from its attorneys by seeking attorney’s fees as
damages for breach of contract.” Id., citing Energy Capital Corp. v. United States, 45
Fed. Cl. 1179 (2000). In Measom v. Greenwich & Perry Street Housing Corp., 752
N.Y.S.2d 194, 196 (N.Y. Civ. Ct. 2002), the court stated: “In seeking to recover their
attorneys’ fees and expenses, plaintiffs have placed the reasonableness, necessity, and
value of their attorneys’ services squarely in issue, for plaintiffs’ own benefit.” “To the
extent the attorneys’ time records are material and necessary to these issues, plaintiffs
have waived any privilege.” Id. In Ringolsby, we addressed the waiver of the attorney-
client privilege through submission of attorney fee bills and provided an alternative to
parties concerned about such waiver. We stated the claimant “could have reworded the
task descriptions on the billing statements in such a manner that attorney-client privilege
would not be waived rather than submitting redacted statements.” Ringolsby, ¶ 21, 193
P.3d at 1171.

[¶25] In sum, when a party makes a claim for attorney fees, the billing statements
generally fall within the scope of production required under Rule 26. Attorney fee
statements are not, by definition, protected under the attorney-client privilege. There is
no blanket rule permitting a party to refuse to produce all of its detailed billing
statements. Tacke v. Energy West, Inc., 227 P.3d 601, 609-10 (Mont. 2010). In some
instances, however, a billing statement may contain communications between the client
and the attorney or legal advice given, bringing it under the definition of privilege in § 1-
12-101. If a party believes that some of the material is privileged, it may withhold the
information but it must provide an appropriate privilege log. It may also file a motion for
a protective order, so the court can devise a plan to protect truly privileged material while
allowing the opposing party a sufficient opportunity to review the bills to determine
whether the charges are reasonable. In the alternative, the party can reword the task
descriptions to remove the privileged materials. Ringolsby, supra.1

1
To assist in the just, speedy and inexpensive determination of cases, Rule 26 appropriately places the
burden of early disclosure on the party who will present the evidence. We recognize that some privileged
information may be included in attorney fee statements. The privilege log and a protective order
procedure should adequately protect such information. Rule 26(a) permits a trial court, in appropriate
situations, to set times for disclosure or even to defer disclosure until after liability has been established.
Nevertheless, a party like FIB cannot simply refuse to provide any information about attorney fees,
effectively preventing any discovery on its claimed damages and increasing costs to both sides.

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[¶26] Given FIB did not provide its detailed billing statement or a privilege log or file a
motion for a protective order, it is clear that FIB did not comply with its discovery
obligations under the rules of civil procedure. Consequently, we look to W.R.C.P. 37 for
the remedy for the discovery violations:

(a) Motion for order compelling discovery. – A party,
upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling
disclosure or discovery as follows:
....

(2) Motion.

(A) If a party fails to make a disclosure required by
Rule 26(a), any other party may move to compel disclosure
and for appropriate sanctions. The motion must include a
certification that the movant has in good faith conferred or
attempted to confer with the party not making the disclosure
in an effort to secure the disclosure without court action.
....

(c) Failure to disclose; false or misleading disclosure; refusal
to admit.

(1) A party that without substantial justification
fails to disclose information as required by Rule 26(a) or
26(e)(1) or to amend a prior response to discovery as required
by Rule 26(e)(2), is not, unless such failure is harmless,
permitted to use as evidence at trial, at a hearing, or on a
motion any witness or information not so disclosed. In
addition to or in lieu of this sanction, the court, on motion and
after affording an opportunity to be heard, may impose other
appropriate sanctions. In addition to requiring payment of
reasonable expenses, including attorney’s fees caused by the
failure, these sanctions may include any of the actions
authorized under Rule 37(b)(2)(A), (B), and (C) and may
include informing the jury of the failure to make the
disclosure.

[¶27] Mr. Dishman asserts FIB’s unredacted billing statement should have been
excluded from evidence at trial under Rule 37(c)(1), and, without that information, FIB
would have been unable to satisfy its burden of proving its attorney fees were reasonable.

12
The district court rejected Mr. Dishman’s argument, faulting him for not filing a motion
to compel FIB to produce the documents. During the bench trial, the court repeatedly
informed Mr. Dishman’s counsel that, since they elected not to pursue production of the
documents through a motion to compel, it was not going to exclude the documents from
the evidence at trial.

[¶28] A litigant can certainly file a motion to compel production of information it
believes it is entitled to under the rules of discovery, and that will often be the most
prudent course of action. However, by placing the burden of compelling production of
the documents upon Mr. Dishman, the district court misinterpreted the requirements
under Rules 26 and 37. Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2289.1 (3d ed.
2015) explained that F.R.C.P. 37(c)(1), which is similar to W.R.C.P. 37(c)(1), provides
for “automatic exclusion” of the undisclosed materials, although courts still have
discretion and may choose to impose alternative sanctions. The authors described the
purposes of the rule:

In large measure, [the automatic exclusion] sanction
was intended to put teeth into the mandatory initial disclosure
requirements. . . . The sanction is automatic in the sense
that there is no need for the opposing party to make a
motion to compel disclosure . . . in order to compel a
further disclosure, as a predicate for imposition of the
sanction of exclusion. . . .

The sweep of this exclusion is softened by the proviso
that it should not apply if the offending party’s failure to
disclose was “substantially justified,” and that even if the
failure was not substantially justified the exclusion should not
apply if the failure was “harmless.”

Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2289.1. Thus, the district court incorrectly
interpreted the discovery rules when it stated that Mr. Dishman was required to file a
motion to compel before the automatic exclusion sanction could be applied.

[¶29] Rule 37(c)(1) provides that a party who, without sufficient justification, fails to
disclose information as required by Rule 26 is not permitted to use that evidence at trial,
unless the failure is harmless. Mr. Dishman claims FIB’s failure to disclose its statement
until October 9, 2014, for the trial on October 14, 2014, was not harmless because his
legal team had only one business day to review the information. The certificate of
service accompanying the unredacted fee statement says it was hand delivered to Mr.
Dishman’s attorneys on October 9, 2014. The record also contains an email
communication indicating that FIB emailed the unredacted information to Mr. Dishman’s
attorneys at 9:26 a.m. on Thursday, October 9, 2014. Mr. Dishman’s attorneys, therefore,

13
had over four days to review the information, although that period included a weekend
and Monday, October 13, 2014, which was Columbus Day.

[¶30] The trial transcript demonstrates that Mr. Dishman was sufficiently prepared to
challenge FIB’s attorney fees request. Mr. Dishman’s attorneys questioned FIB’s
numerous witnesses extensively and in great detail about the proceedings in the case and
various entries in the attorney fees statement. In addition, the October 9, 2014 email
from FIB’s attorneys, which included the unredacted fee statement, said: “If you need
more time to review this before trial is scheduled, I will not object to a continuance.”
Mr. Dishman did not request a continuance. Under these circumstances, FIB’s failure to
provide the information required by Rule 26 was harmless. The district court did not err
by allowing the unredacted fee statement into evidence.

[¶31] Mr. Dishman also complains that by allowing FIB to present the unredacted fee
statement at trial, FIB was given “more than one bite at the apple,” contrary to our
decision in Ringolsby. Ringolsby was awarded damages, attorney fees and costs in an
earlier action. While attempting to collect the judgment, he filed an action to pierce the
corporate veil. After securing a judgment on the piercing claim, Ringolsby filed a motion
for attorney fees and costs using a redacted billing statement. Although he offered to
provide the unredacted statement for in camera review if requested by the district court,
the court ruled that Ringolsby had not met his burden of proving his attorney fees were
reasonable and was not entitled to a second opportunity through an in camera review of
the billing statement. Ringolsby, ¶¶ 3-11, 193 P.3d at 1168-69. This Court upheld the
district court’s ruling. Id., ¶¶ 16-18, 193 P.3d at 1170-71. See also Pekas, 903 P.2d at
537 (stating “if a party has had an opportunity to present proof of attorney fees to the trial
court, and they fail to do so, the award will be summarily reversed on appeal with no
remand.”).

[¶32] Ringolsby addressed a much different situation than the present case. Here, the
only evidentiary hearing on attorney fees took place during the bench trial. The
unredacted fee statement was presented at that time. FIB asked, in a pretrial motion, for
permission to present the statement in camera, but the district court denied that request.
Contrary to Mr. Dishman’s assertion, his earlier communications asking for the
information did not provide FIB with opportunities (bites of the apple) to prove its
attorney fees. Likewise, the district court did not deny FIB’s request for fees on
summary judgment; it merely stated there were genuine issues of material fact that
needed to be determined at a full evidentiary hearing. The proceedings in this case did
not provide FIB with multiple opportunities to prove its attorney fees claim.

3. Attorney Fees Award

[¶33] Mr. Dishman argues the district court abused its discretion by awarding FIB over
$18,000 in attorney fees and costs to secure a judgment on a debt with a principal balance

14
of less than $15,000. He asserts FIB’s fees were not reasonable. As we stated, infra, the
district court has broad discretion in awarding fees, but the claimant has the burden of
showing the fees are reasonable under the federal lodestar test.

[¶34] The district court accurately stated that this judicial foreclosure action was
significantly more complex than a typical advertisement and sale foreclosure. However,
in awarding FIB most of its requested fees and costs, the district court did not take into
account the bank’s discovery violations or its obligation to exercise billing judgment. As
we discussed above, FIB did not follow the proper course in asserting its billing
statement was privileged, undertake an appropriate analysis to determine whether the
information was actually subject to privilege, or make any effort to reword its
descriptions to avoid possible disclosure of privileged material. Instead, it simply
withheld the information without explanation and then filed a belated motion to present
the information to the district court in camera.

[¶35] Under these circumstances, it is unreasonable to expect Mr. Dishman to pay fees
associated with FIB’s improper efforts to avoid its discovery responsibilities and to skirt
its burden of proving in open court that its fees were reasonable. See generally, Hensley
v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) (discussing generally
the concept of carving out unsuccessful or improper fees from an attorney fees award).
Some of the improper fees were disallowed as part of the district court’s rejection of fees
associated with FIB’s expert attorney. However, there were other fees associated with
FIB’s discovery violations that were unreasonable and should have also been denied,
including: 1) an October 6, 2014, $182 charge for research on in camera review of
privileged documents and incorporation of the same into FIB’s trial summary; 2) an
October 7, 2014, $168 charge for research on in camera review; 3) October 9, 2014
charges of $307.50 and $15 for follow-up after the district court denied in camera review
of the billing statement, preparation of supplemental exhibits (including the unredacted
billing statement), and email correspondence with opposing counsel concerning the
supplemental exhibits. In addition, FIB charged at least one-half hour of attorney time on
five separate occasions for preparation of its statement of fees. That should have been a
very simple administrative task involving little more than printing the bills but, because
FIB improperly redacted the description of services from the statements, it resulted in
$195 in attorney fees. The fees related to FIB’s discovery violations totaled $867.50.
They were not reasonable and should not have been charged to Mr. Dishman.

[¶36] The district court’s decision also does not reflect that it held FIB to its duty to
exercise billing judgment by “writing off unproductive, excessive, or redundant hours.’”
NRF, ¶ 9, 294 P.3d at 883-84, quoting Green, 284 F.3d at 662. According to Mr.
Dishman, FIB should not have expended funds for: preparing documents for an
advertisement and sale foreclosure when it did not proceed that way; exploring various
legal issues like lender liability; service by publication; and unnecessary discovery

15
requests. He also claims FIB spent an exorbitant amount of time preparing for summary
judgment.

[¶37] As Mr. Dishman points out, FIB’s billing statement included charges for preparing
for foreclosure by advertisement and sale, which it did not complete. Those fees
included: 1) a June 14, 2013 charge of $80 for beginning work on notice of intent to
foreclose; 2) a July 15, 2013 charge of $80 for “[b]rief review of foreclosure policy,
update to partner, update to client, began revisions to draft of notice of intent to
foreclosure;” 3) a July 16, 2013 charge of $176 for “[c]ontinued revisions on notice of
intent to foreclosure, finalize documents, forward to partner for review;” 4) a July 31,
2013, $156 charge for “[r]eview of title work, review of 10 day Notice of Intent to
Foreclose in draft,” and “[c]onsider good faith issues and follow up on the same.” In
total, FIB charged $492 for preparation of an advertisement and sale foreclosure which
was never completed. The time spent in the effort was unproductive and should have
been written off as part of FIB’s billing judgment.

[¶38] FIB also charged $704 for researching “lender liability” on August 1 and 2, 2013.
At trial, FIB’s attorney testified the task described as “lender liability” research included
investigation of how to properly foreclose upon an incompetent person, the process of
judicial foreclosure and how to avoid risks associated with those procedures. The
mortgage and the credit agreement executed by Mr. Dishman allowed FIB to recover its
attorney fees for enforcement of the agreement. Given Mr. Dishman did not assert a
claim for “lender liability” at any time during this action, the time FIB’s counsel spent
researching lender liability was not necessary to the enforcement of the agreements in
this case. The fees associated with research of lender liability were not recoverable.

[¶39] The district court also approved the attorney fees and costs associated with service
of process by publication. W.R.C.P. 4 governs service of process and provides in
relevant part:

(d) Personal Service. – The summons and complaint shall
be served together. The plaintiff shall furnish the person
making service with such copies as are necessary. Service
shall be made as follows:

(1) Upon an individual other than a person under 14 years
of age or an incompetent person, by delivering a copy of the
summons and of the complaint to the individual personally, or
by leaving copies thereof at the individual’s dwelling house
or usual place of abode with some person over the age of 14
years then residing therein, or at the defendant’s usual place
of business with an employee of the defendant then in charge
of such place of business, or by delivering a copy of the

16
summons and of the complaint to an agent authorized by
appointment or by law to receive service of process;

(2) Upon a person under 14 years of age or an
incompetent person, by serving the same upon the guardian
or, if no guardian has been appointed in this state, then upon
the person having legal custody and control or upon a
guardian ad litem;
....

e) Service by Publication. – Service by publication may be
had where specifically provided for by statute, and in the
following cases:

(1) When the defendant resides out of the state, or the
defendant’s residence cannot be ascertained, and the action is:

(iii) For the sale of real property under a mortgage, lien
or other encumbrance or charge;
....

(3) In actions which relate to, or the subject of which is
real or personal property in this state, when a defendant has or
claims a lien thereon, or an actual or contingent interest
therein or the relief demanded consists wholly or partly in
excluding the defendant from any interest therein, and . . .
defendant’s place of residence cannot be ascertained[.]
....

(e) Requirements for Service by Publication. – Before
service by publication can be made, an affidavit of the party,
or the party’s agent or attorney, must be filed stating that
service of a summons cannot be made within this state, on the
defendant to be served by publication, and stating the
defendant’s address, if known, or that the defendant’s address
is unknown and cannot with reasonable diligence be
ascertained, detailing the efforts made to obtain an address,
and that the case is one of those mentioned in subdivision (e);
and when such affidavit is filed, the party may proceed to
make service by publication. In any case in which service by
publication is made when the address of a defendant is
known, it must be stated in the publication. Immediately after
the first publication the party making the service shall deliver

17
 to the clerk copies of the publication, and the clerk shall mail
a copy to each defendant whose name and address is known
by registered or certified mail and marked “restricted
delivery” with return receipt requested, directed to the
defendant’s address named therein, and make an entry thereof
on the appearance docket.

[¶40] FIB filed an affidavit pursuant to Rule 4(f) stating that service of process by
publication was warranted because efforts to serve Mr. Dishman at his home were
unsuccessful, the property appeared vacant, and, although attempts had been made to
serve him at the LLC, it could not confirm that he actually lived there. These statements
are contradicted in other parts of the record. In a November 19, 2013 certified letter to
Ms. Dow, FIB indicated the bank was aware that Mr. Dishman lived at LLC, it had been
informed by LLC that Ms. Dow held power of attorney for Mr. Dishman and gave her
notice the case was pending in district court.
[¶41] The record also indicates that FIB knew Mr. Dishman was incompetent. FIB’s
attorney, Megan Goetz, testified:

Q. Were there issues – once the complaint was drafted,
were there issues in getting Mr. Dishman served?
A. There were.
Q. Can you please describe those?
A. We were unable to get Mr. Dishman served at [the
mortgaged property]. We had been told through a grapevine
chain of communications at the bank that we believed
initiated with Ms. Dow that Mr. Dishman was located at the
Laramie Care Center. We had been sending demand letters
and notices via certified mailed to Mr. Dishman at both
addresses.
Interestingly enough, they were being returned. They
were initially returned by the Laramie Care Center, later
accepted. At one point the certified mailing was actually
changed. We’re not sure how that happened. But someone
changed the address on the green card and had it sent to Ms.
Dow at [her] address.
We then received that notice and tried to make contact
with Ms. Dow at [her address] and the letters were returned.
And we received – I received a call from Laramie Care
Center finally saying, yes, he was there, he was incompetent,
and we should stop contacting them or trying to get any
information out of them.

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[¶42] Service of process by publication is only allowed when personal service is not
reasonable or practical. See, e.g., First Wyo. Bank, N.A., Rawlins v. Trans Mountain
Sales & Leasing, Inc., 602 P.2d 1219, 1223 (Wyo. 1979); In re Longquest’s Estate, 526
P.2d 994, 998 (Wyo. 1974). FIB knew Mr. Dishman’s location, knew he was
incompetent, believed Ms. Dow was his attorney-in-fact, and knew her address.
Consequently, it could have personally served Mr. Dishman under Rule 4(d)(2) by
serving Ms. Dow. FIB’s counsel charged $270 in fees for service by publication and the
cost of publication was $693, for a total of $963. Those expenses were unreasonable and
should have been deducted from FIB’s request.

[¶43] Mr. Dishman also challenges the fees associated with FIB’s discovery requests,
seeking information about the status and condition of the house and an accounting of the
payments he had made to the bank. He claims the bank could have obtained the
information about the house by driving by and FIB already had the information about his
payments. The district court did not abuse its discretion by allowing FIB to recover the
fees associated with the discovery requests. The bank was entitled to detailed
information about its collateral, i.e., whether it was occupied, its condition, and who was
taking care of any required maintenance. The question about Mr. Dishman’s records of
the payments he made to the bank was also relevant to determine whether there was any
discrepancy in the bank’s accounting and calculation of the amounts due.

[¶44] Finally, Mr. Dishman challenges the amount awarded to FIB for preparation of the
summary judgment materials, which he calculates as $3,611. Mr. Dishman’s principal
argument is that FIB’s right to a judgment on the amounts due under the line of credit
was not contested. The district court correctly recognized there is nothing in the record
showing that Mr. Dishman conceded the debt or the principal amount due early in the
litigation. In fact, the documents in the record, including his answer which denied almost
every allegation of the complaint, demonstrate that all of FIB’s claims were at issue until
Mr. Dishman responded to FIB’s motion for summary judgment. At that point, he
conceded he owed the principal amount of the debt, accrued interest and most of the
costs. Although the fees awarded FIB for preparation for summary judgment were
significant, we are not convinced the district court abused its discretion by allowing them.

[¶45] However, many of the fees incurred after summary judgment could have been
avoided if FIB had complied with its discovery obligation and produced the unredacted
attorney fee statement earlier in the litigation. The district court’s incorrect
understanding of the discovery rules gave it a skewed perspective in determining whether
FIB’s post-summary judgment fees were reasonable. The trial transcript demonstrates
that Mr. Dishman would have challenged some of the charges regardless of when the
unredacted statements were produced, but the parties may have been able to agree on
others. We cannot determine, in hindsight, which fees would have been incurred even if
FIB had produced its complete fee statement in a timely manner as required by the rules
of discovery. Nevertheless, we conclude it is inequitable to allow FIB to recover all of its

19
fees when earlier production of the descriptions of the nature of services would have
helped the parties focus on the items actually in dispute. See Grommet, supra.

[¶46] We have, in the past, approved a district court’s determination that fees should be
reduced by an overall percentage. In NRF, ¶ 20, 294 P.3d at 888, we affirmed the district
court’s decision reducing the attorney fees by fifty percent. Under the circumstances of
this case, we conclude equity requires that we reduce the post-summary judgment fees,
which we have not already disallowed, by fifty percent. The total of these fees is $4,100,
so fifty percent is $2,050. We conclude, therefore, the district court allowed $5,076.50 in
fees that were improper. Consequently, the amount of attorney fees that should have
been awarded was $13,144.49 ($18,220.99 awarded by the district court less the
$5,076.50 in improper fees).

[¶47] Appellee requested an award of attorney fees incurred in responding to this appeal.
We conclude that Appellee could have avoided substantial cost, and this appeal, by
simply complying with the clear rules related to disclosure of itemized attorney fees
statements, and with WRCP 26. As we have affirmed only in part, and reversed in part,
we find that each party should bear its own costs and attorney fees incurred in this appeal.

[¶48] Affirmed in part, reversed in part, and remanded for entry of an order granting
FIB’s request for attorney fees in the amount of $13,144.49.

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