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Chip Dave v. Bill Valdez

April 13, 2012

CHIP DAVE, APPELLANT (PLAINTIFF),
v.
BILL VALDEZ, INDIVIDUALLY, APPELLEE (DEFENDANT).



Appeal from the District Court of Sweetwater County The Honorable Dennis L. Sanderson, Judge

The opinion of the court was delivered by: Voigt, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, 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.

[¶1] Chip Dave (the appellant) purchased a car on eBay. Before he took possession of the vehicle, the seller sold it to another buyer, Bill Valdez (the appellee). The appellant filed a complaint against the appellee citing a number of causes of action, including replevin. Following the appellee's failure to respond to the appellant's second amended complaint, a default judgment was entered and the appellant was granted a writ of replevin ordering the appellee to relinquish possession of the vehicle. The appellant now appeals the district court's denial of an award of attorney fees. We affirm.

ISSUE

[¶2] Did the district court abuse its discretion by denying the appellant's request for attorney fees?

FACTS

[¶3] In October 2006, the appellant purchased a car through a transaction on eBay. The appellant paid the seller $2,580 and received a bill of sale. The seller agreed to hold the car until the appellant could arrange for the car to be transported to California. The following month, before the vehicle was picked up, the appellee offered the seller several hundred dollars more for the vehicle. The seller accepted and the appellee took possession of the car and later obtained title to the vehicle.

[¶4] The appellant filed a complaint in circuit court. This action was later transferred to district court due to the amount of money in controversy. The appellant's second amended complaint alleged five causes of action--replevin, tortious interference with contract, conversion, violation of motor vehicle statutes fraudulently to obtain title, and abuse of process. The appellee failed to answer the second amended complaint and a Certificate of Default was entered. At the final default hearing, the entry of default was upheld and the court issued a writ of replevin ordering the appellee to surrender the vehicle to the appellant. The district court scheduled a hearing on the appellant's request for attorney fees. At that hearing the district court denied the appellant's request. The appellant now appeals that determination.

STANDARD OF REVIEW

[¶5] A denial of attorney fees will be reviewed for an abuse of discretion. Am. Nat'l Bank v. Sara, 2011 WY 9, ¶ 14, 246 P.3d 294, 299 (Wyo. 2011). "A court abuses its discretion only when it acts in a manner which exceeds the bounds of reason under the circumstances." Id. (quoting Cline v. Rocky Mountain, Inc., 998 P.2d 946, 951 (Wyo. 2000)).

DISCUSSION

[¶6] Wyoming law abides by the American rule, providing that each party is responsible for his or her own attorney fees. Thorkildsen v. Belden, 2012 WY 8, ¶ 10, 269 P.3d 421, 424 (Wyo. 2012). "A prevailing party may, however, be reimbursed for attorney fees when provided for by contract or statute." Id. The appellant argues that the appellee violated the appellant's rights as a lien holder by failing to give proper notice prior to pursuing a title to the vehicle. Wyo. Stat. Ann. § 29-7-105(b) (LexisNexis 2011). The appellant relies on the following subsection in making his claim for attorney fees: "A lien claimant is liable for damages caused by failure to comply with this section." Wyo. Stat. Ann. § 29-7-105(j) (LexisNexis 2011) (emphasis added). The appellant argues that the district court abused its discretion by failing to consider that an award of damages may include attorney fees.

[¶7] We disagree with the appellant. The statutory exception to the American rule arises where a statute explicitly makes available an award of attorney fees. Here, the statute relied upon by the defendant refers only to damages. Where the legislature has chosen to allow for attorney fees, either independently or as a portion of damages, it has done so explicitly. For example, the legislature has made use of the statutory exception by permitting recovery of "damages sustained and the costs of the action, including a reasonable attorney's fee" and "damages plus court costs and reasonable attorney's fees." Wyo. Stat. Ann. §§ 12-9-116(c) and 12-33-23-103(b) (LexisNexis 2011). See also, e.g., Wyo. Stat. Ann. §§ 1-1-115(c), 1-1-126(a), 1-1-128(a), 1-15-509(b), 1-16-605(a)(ii)(B), 1-40-303(d), 3-1-111(g), 6-3-901(d), 7-3-504(a), ...


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