Utah Court Rules – Published for Comment
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Posted: December 20, 2018
URCP073. Attorney Fees. Amend. In response to McQuarrie v. McQuarrie, 2017 UT App 209, and Chaparro v. Torero, 2018 UT App 181, clarifies that all requests for attorney fees are governed by Rule 73, no matter when they are raised.
This past week we have had some issues/concerns with the court in attempting to get post-judgment augmentation pursuant to subsection f(3). It seems that there is uncertainty as to what is required to be filed when “augmenting” under this subsection. When reading Rule 54(e) while also trying to apply f(3), it is unclear whether an actual “amended judgment” needs to be served and filed if an “augmentation” is sought. It appears that the aspect of f(3) that streamlines the process of augmenting a judgment for attorney’s fees would be completely frustrated or virtually eliminated if parties are also required to submit and serve an augmented judgment. For example, if seeking an additional $25 augmentation, the time and resources spent to create, file, and serve an augmented judgment for that $25 would be virtually wasted.
As such, it seems that subsection f(3) (or alternatively Rule 54(e), but simply amending f(3) would be easier since Rule 73 is being amended herein) should expressly exclude any requirement of filing and serving an augmented judgment when seeking, and ultimately obtaining, augmentation of the judgment for attorney’s fees under that subsection. I think the intent of subsection f(3) was to allow for requesting and simply receiving the requested augmentation only if the motion/application is granted by the court, and if the court does not grant it (regardless of the reason, and especially if the reason might be to not allow the fee augmentation), then the augmentation does not happen, but that per the plain reading of this subsection that the requested augmentation of the fees happens, despite not complying with subsections (a) through (c) (i.e., filing and serving a motion, etc.) immediately upon properly requesting the augmentation AND the granting of the motion/application. Additionally, it also seems the whole purpose of subsection f was to obviate the need to file a separate motion, and if a separate motion is obviated, it seems that filing (and serving) an amended judgment should also be obviated, but since it is unclear, it is appropriate to amend to make it clear.
Although the proposed amendment is of a different part of Rule 73, I think it prudent that subsection f(3) also be amended to address the issues/concerns set forth above.