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When are attorney's fees awarded in an easement or other document involving real property?

Posted by Gayla K. Austin | May 10, 2021 | 0 Comments

The Wyoming Supreme Court decided on March 25, 2021, in a case involving an easement Adam Levy had for underground fiber optic cable within a utility easement located on the property of the Stirns, that he was entitled to attorney's fees for enforcement of the easement.   Levy also requested attorney fees and costs under the easement's fee shifting provision because the Defendants refused to allow Plaintiff to install the utility.   The question is, because Plaintiff had to file a declaratory judgment action against the Stirns for a right he had to the easement, is Levy entitled to attorney's fees?   Or would he be entitled to attorney's fees whether he filed suit or not?   That depends on the language in the easement--let's unpack that and take a look. 

The easement had a fee shifting provision. 

The plaintiff owned property in Wyoming which was benefitted by a 30-foot access and utility easement located on the Defendants' property.  The Defendants refused to allow access unless they were paid and provided free internet service, including free installation.  The Plaintiff filed a complaint against the Defendants to allow installation and for fees and costs under the easement's fee shifting provision.    The Wyoming Court reviewed the easement, including its fee shifting provision.  Easements are reviewed in the same manner as are contracts in this state.  In Wyoming, the law on contract interpretation states that unless the easement is ambiguous, its language expresses and controls the intent of the parties.  An easement is ambiguous if it conveys a double or obscure meaning.  Disagreement over the meaning of an easement does not create an ambiguity in Wyoming.  The easement was not ambiguous. 

What is the general rule in Wyoming about attorney's fees? 

Wyoming generally subscribes to the American rule regarding the recovery of attorney fees, and that is each party pays his or her own fees.  A prevailing party may, however be reimbursed for attorney fees when provided for by contract or statute.   Here, the plaintiff seeks attorney's fees under the easement's fee shifting provision, which states: 

"In any proceeding to enforce any of the terms and conditions in this instrument, the prevailing party shall be entitled to recover all costs incurred in connection therewith, including reasonable attorney's fees, whether suit is brought or not". 

The Court found that a lawsuit is not required for a party to be entitled to fees under the easement's fee shifting provision because it allows fee whether suit is brought or not.   The question is whether the plaintiff's lawsuit sought to "enforce" the terms and conditions of the easement.  Important in this case is that the plaintiff brought the lawsuit after the Defendants violated the easement by refusing to allow him to install fiber optic cable in the easement.  By bringing the lawsuit, he sought to "compel" their compliance with the easement.  Under these circumstances, the Court said, his lawsuit sought to "enforce" the terms of the easement.  

When did the Court hold no attorney's fees were allowed? 

In contrast, the Court pointed out that in a separate case where the Plaintiff was not seeking to compel the Defendant to comply with the easement but rather was merely seeking an interpretation of the agreement, the fee shifting provisions did not apply.  

Why were attorney's fees allowed in this case? 

In this case, there was a violation of the easement.  The Defendants interfered with the installation of the fiber optic cable.  The Plaintiff filed a lawsuit to compel them to cease their conduct.  They refused.  The plaintiff in our recent case requested more than an interpretation of the easement--he sought to compel the Defendant's compliance with the easement. 

The take away. 

Make sure your real property and other agreements have carefully drafted attorney's fees provisions that allow for award of attorney's fees whether suit is brought or not and defines other necessary terms for enforcement of the agreement. 

I would be pleased to review your easement or any other documents and offer a free consultation.  My telephone number is 307.200.1914.   

About the Author

Gayla K. Austin

I enjoy helping clients put it all together with legal advice regarding real property, estate planning and business entities.

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