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.
In 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.
In 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 attorney.
