12-348

12-348. Award of fees and other expenses
against the state or a city, town or county; reduction or denial
of award; application; basis for amount of award; source of
award; definitions

A. In addition to any costs which are awarded as prescribed by statute, a court
shall award fees and other expenses to any party other than this state or a city, town
or county which prevails by an adjudication on the merits in any of the following:

1. A civil action brought by the state or a city, town or county against the
party.

2. A court proceeding to review a state agency decision pursuant to chapter 7,
article 6 of this title or any other statute authorizing judicial review of agency
decisions.

3. A proceeding pursuant to section 41-1034.

4. A special action proceeding brought by the party to challenge an action by the
state against the party.

5. An appeal by the state to a court of law from a decision of the personnel
board under title 41, chapter 4, article 6.

6. A civil action brought by the party to challenge the seizure and sale of
personal property by the state or a city, town or county.

B. In addition to any costs which are awarded as prescribed by statute, a court
may award fees and other expenses to any party, other than this state or a city, town
or county, which prevails by an adjudication on the merits in an action brought by the
party against this state or a city, town or county challenging:

1. The assessment or collection of taxes or in an action brought by this state or
a city, town or county against the party to enforce the assessment or collection of
taxes.

2. The adequacy or regularity of notice of delinquent taxes.

3. The regularity of sales of property for delinquent taxes.

C. The court in its discretion may deny the award provided for in this section or
may reduce the award if it finds that any of the following applies:

1. During the course of the proceeding the prevailing party unduly and
unreasonably protracted the final resolution of the matter.

2. The reason that the party other than the state or a city, town or county has
prevailed is an intervening change in the applicable law.

3. The prevailing party refused an offer of civil settlement which was at least
as favorable to the party as the relief ultimately granted.

D. A party may apply pursuant to the applicable procedural rules for an award of
attorney fees and other expenses authorized under this section and shall include as
part of the application evidence of the party's eligibility for the award and the
amount sought, including an itemized statement from the attorneys and experts stating
the actual time expended in representing the party and the rate at which the fees were
computed.

E. The court shall base any award of fees as provided in this section on
prevailing market rates for the kind and quality of the services furnished, except
that:

1. An expert is not eligible for compensation at a rate in excess of the highest
rate of compensation for experts paid by this state or a city, town or county.

2. Except for awards made pursuant to subsection B of this section, the award of
attorney fees may not exceed the amount which the prevailing party has paid or has
agreed to pay the attorney or a maximum amount of seventy-five dollars per hour unless
the court determines that an increase in the cost of living or a special factor, such
as the limited availability of qualified attorneys for the proceeding involved,
justifies a higher fee.

3. For awards made pursuant to subsection B of this section, the award of
attorney fees may not exceed the amount which the prevailing party has paid or agreed
to pay the attorney or a maximum amount of one hundred seventy-five dollars per hour.

4. Except for awards made pursuant to subsection B of this section, an award of
fees against a city, town or county as provided in this section shall not exceed ten
thousand dollars.

5. For awards made pursuant to subsection B of this section, an award of fees
against the state or a city, town or county shall not exceed thirty thousand dollars
for fees incurred at each level of judicial appeal.

F. The particular state agency over which a party prevails shall pay the fees and
expenses awarded as provided in this section from any monies appropriated to the agency
for that purpose. If no agency is involved or if an agency fails or refuses to pay fees
and other expenses within thirty days after demand by a person who has received an
award pursuant to this section, and if no further review or appeals of the award are
pending, the person may file a claim for the fees and other expenses with the
department of administration, which shall pay the claim within thirty days, in the same
manner as an uninsured property loss under title 41, chapter 3.1, article 1. If, at the
time the agency failed or refused to pay the award, it had appropriated monies either
designated or assignable for the purpose of paying awards, the legislature shall reduce
the agency's operating appropriation for the following year by the amount of the award
and shall appropriate the amount of the reduction to the department of administration
as reimbursement for the loss.

G. A city, town or county shall pay fees and expenses awarded as provided in this
section within thirty days after demand by a party who has received an award if no
further review or appeal of the award is pending.

H. This section does not:

1. Apply to an action arising from a proceeding before this state or a city, town
or county in which the role of this state or a city, town or county was to determine
the eligibility or entitlement of an individual to a monetary benefit or its
equivalent, to adjudicate a dispute or issue between private parties or to establish or
fix a rate.

2. Apply to proceedings brought by this state pursuant to title 13 or 28.

3. Entitle a party to obtain fees and other expenses incurred in making an
application for an award pursuant to this section for fees and other expenses.

4. Apply to proceedings involving eminent domain, foreclosure, collection of
judgment debts or proceedings in which the state or a city, town or county is a nominal
party.

5. Personally obligate any officer or employee of this state or a city, town or
county for the payment of an award entered under this section.

6. Apply, except as provided in subsection A, paragraph 5 of this section, to
proceedings involving the personnel board under title 41, chapter 4, article 6.

7. Apply to proceedings brought by a city, town or county pursuant to title 13 or
28.

8. Apply to proceedings brought by a city, town or county on collection of taxes
or pursuant to traffic ordinances or to criminal proceedings brought by a city, town or
county on ordinances which contain a criminal penalty or fine for violations of those
ordinances.

I. As used in this section:

1. "Fees and other expenses" means the reasonable expenses of expert witnesses,
the reasonable cost of any study, analysis, engineering report, test or project which
the court finds to be directly related to and necessary for the presentation of the
party's case and reasonable and necessary attorney fees, and in the case of an action
to review an agency decision pursuant to subsection A, paragraph 2 of this section, all
fees and other expenses that are incurred in the contested case proceedings in which
the decision was rendered.

2. "Party" means an individual, partnership, corporation, association or public
or private organization.

3. "State" means this state and any agency, officer, department, board or
commission of this state.