concurring and dissenting:
I concur in reducing the amount of nominal damages to $1 and in vacating the award of attorney fees made by the trial court. However, I would not remand the case to the trial court for re-determination of the fees. While it is true that the Clarks defaulted on the agreement, thus entitling the Footes to a reasonable attorney fee, a reasonable amount under the circumstances of this case is only $1.
Wdien the Footes filed this action, they had no evidence that the property was worth more than the amount for which they had offered to buy it and for which it was later sold to a third party. They failed to produce any such evidence at trial. Thus the Footes had no reasonable expectation of recovering more than nominal damages. I would not promote the filing of this type of case where there is no chance of recovery of compensatory damages. The Footes are entitled to a “reasonable” attorney fee which in this case should be limited to $1. See Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (holding that if plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, “the only reasonable fee is usually no fee at all”); see also Pino v. Locascio, 101 F.3d 235, 239 (2d Cir.1996) (“[AJttorney fees and costs are usually not appropriate when a plaintiff recovers only nominal damages.”); Griffith v. Colorado Div. of Youth Servs., 17 F.3d 1323,1329 (10th Cir.1994) (failure of plaintiff to obtain success in litigation precluded attorney fee award); N.E.W. v. Kennard, 952 F.Supp. 714, 721 (D.Utah 1997) (plaintiffs are not entitled to attorney fees where neither the Constitution nor Federal law provided them relief).