N.A.R. v. Baer

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N.A.R., Inc.,
Plaintiff and Appellant,

v.

Mark Baer,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990517-CA

F I L E D
April 6, 2000
  2000 UT App 100 -----

Third District, Tooele Department
The Honorable Leon A. Dever

Attorneys:
Mark T. Olson and Marlene F. Gonzalez, Salt Lake City, for Appellant

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Before Judges Jackson, Bench, and Billings.

PER CURIAM:

Utah Code of Judicial Administration Rule 4-505.01(5) provides:

Attorney fees awarded pursuant to this rule may be augmented after judgment pursuant to Rule 4-505. When the court considers a motion for augmentation of attorney fees awarded pursuant to this rule, it shall consider the attorney time spent prior to the entry of judgment, the amount of attorney fees included in the judgment, and the statements contained in the affidavit supporting the motion for augmentation.

We have interpreted this section to mean that a default judgment holder may seek post-judgment fees in addition to those provided for in Rule 4-505.01(1) (providing for $150 fee award for default judgments of $700 or less). See N.A.R. v. Farr, 2000 UT App 62, ¶¶8, 10 (holding "trial court incorrectly interpreted Rule 4-505.01(5)-attorney-fee-augmentation motions to be conclusively governed by subsection one's fee schedule").

In this case, the trial court augmented the underlying judgment as Rule 4-505.01(5) provides, but then set aside that order after Baer argued he had paid the underlying judgment in full. Although it is true that Baer paid the underlying judgment in full, Rule 4-505.01(5) allows for augmentation if certain criteria are met.

Accordingly, we reverse the trial court's order setting aside its augmentation award and remand the matter so that the trial court may "consider the attorney time spent prior to the entry of the judgment, the amount of attorney fees included in the judgment, and the statements contained in the affidavit supporting the motion for augmentation" and make a post-judgment augmentation of the attorney fee award, if appropriate.(1) See Rule 4-505.01(5).
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. We note that subsection (5) "deals with attorney fees incurred post-judgment." Farr, 2000 UT App 62 at ¶9. N.A.R. cannot seek additional pre-judgment fees. See id.