Sometimes in the scope of my practice clients inquire whether a party’s
winning a lawsuit ensures their attorneys’ fees will be paid at
the expense of the losing party. In general, it does not. Recently, in
White v. Kohout, 286 Neb. 700 (2013), the Nebraska Supreme Court reexamined when a court
may award attorneys’ fees under Nebraska law.
White, several taxpayers challenged the validity of an agreement for hosting
of a landfill near their properties. The landfill was operated by a private
entity in agreement with a quasi-governmental entity created by adjacent
counties. The district court dismissed the challengers’ complaint
and imposed attorney fees against them under “frivolous actions” statutes.
On appeal, the challengers argued the district court erred in ordering
them to pay the opposition’s attorney fees and costs. They contended
Neb. Rev. Stat. § 25-824(5) barred the court from awarding attorney
fees and costs, required the court to make more specific findings prior
to awarding, and the court incorrectly found their complaint to be frivolous
and filed in bad faith.
Neb. Rev. Stat. § 25-824 provides,
inter alia, in any civil action commenced or appealed in any court of record in this
state, the court shall award as part of its judgment, and in addition
to any other costs otherwise assessed, reasonable attorney’s fees
and court costs against any attorney or party who has brought or defended
a civil action that alleges a claim or defense which a court determines
is frivolous or made in bad faith.
White, in reversing the District Court, the Nebraska Supreme Court noted generally
a trial court’s decision awarding or denying attorney fees will
be upheld absent an abuse of discretion. Further, attorney fees can be
awarded when a party brings a frivolous action that is without rational
argument based on law and evidence; however, any reasonable doubt whether
a legal position is frivolous or taken in bad faith should be resolved
for the party whose legal position is in question.
The Supreme Court in
White held the district court abused its discretion in awarding the defendants
attorneys’ fees and costs. The court noted the term “frivolous”
connotes an improper motive or legal position so wholly without merit
as to be ridiculous. Although the challengers’ argument was perhaps
strained and farfetched, there was sufficient doubt to preclude an award
of fees and costs under § 25-824. Further, the challengers nonetheless
demonstrated a sufficient basis for their contention to create doubt as
to whether their complaint was frivolous.
In short, the court gave the challengers in
White the benefit of the doubt; however, while it may be difficult to recover
attorneys’ fees under Nebraska’s “frivolous actions”
statutes, some causes of action specifically call for attorneys’
fees for the prevailing party. In short, whether a party can recover attorneys’
fees should be specifically discussed by you and your