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July 26, 2021

Attorney Fees after Dismissal

Case: Mindy Donovan v. Joshua R. Hastings

Issues: How should attorney fees be calculated after a motion to dismiss is granted?

Facts : Homeowner sued Contractor regarding a contract dispute. Contractor filed a counter-complaint, and then an amended counter-complaint. Homeowner filed a motion to dismiss Contractor’s amender counter-complaint, which was granted. Homeowner then moved for attorney fees, but the trial court awarded only certain attorney fees incurred from her motion to dismiss the amended counter-complaint (but not fees incurred from work before the amended counter-complaint was filed).

Intermediate Decision: In a 2-1 decision, the intermediate court affirmed the partial award of attorney fees, holding that since the amended counter-complaint “superseded and destroyed” the original counter-complaint, no attorney fees could be awarded regarding the original claim. Judge McBrayer, dissenting in part, disagreed: since “the same claim” was in both counter-complaints, attorney fees should be awarded for related work both before and after the amended counter-claim was filed.

Review Granted: April 7, 2021.

Prediction: Ben thinks the Supreme Court will adopt the dissent’s interpretation for the reasons stated therein.