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Silva v. Botsch

Supreme Court of New Hampshire Hillsborough
Nov 20, 1981
121 N.H. 1041 (N.H. 1981)

Summary

finding that "costs" as defined in RSA chapters 490 and 525 do not include attorney's fees

Summary of this case from Smith v. Town of Wolfeboro

Opinion

No. 81-100

Decided November 20, 1981

1. Costs — Attorney Fees — Generally The general American rule is that each party in an action must bear his own attorney's fees; however, exceptions to this rule have been created by legislative acts and by judicial decision.

2. Costs — Attorney Fees — Grounds for Awarding When a trustee successfully litigates in good faith for the primary benefit of the trust as a whole, the court may award him attorney's fees.

3. Costs — Attorney Fees — Grounds for Awarding Where selectman expended his own funds in bringing action against other selectmen of town, contending he had been wrongfully removed from position as ex-officio representative on town planning board before expiration of his term in violation of statute prescribing terms of town officials, and prevailed on the merits, his action conferred a substantial benefit upon the town and upon the State in vindicating the legislature's express command and therefore entitled him to recovery of his attorney's fees. RSA 36:5 II (Supp. 1979).

4. Costs — Attorney Fees — Discretion When overriding considerations so indicate, the award of fees lies within the power of the court, and is an appropriate tool in the court's arsenal to do justice and vindicate rights.

5. Costs — Attorney Fees — Grounds for Awarding Under exception to general rule precluding award of attorney's fees, applicable to public officials who prevail in actions which confer substantial benefit on the public, the good or bad faith of the defendant is not a consideration in the award of attorney's fees.

6. Costs — Attorney Fees — Grounds for Awarding The bad faith conduct of the defendant is relevant to the award of attorney's fees under exception to the general rule precluding award of attorney's fees, applicable to vexatious litigation.

7. Costs — Attorney Fees — Grounds for Awarding The good faith of the party requesting attorney's fees is an important consideration under exceptions to general rule precluding award of attorney's fees, allowing attorney's fees to public officials prevailing in litigation conferring substantial benefit upon the public and to trustees prevailing in litigation for the primary benefit of the trust as a whole.

8. Costs — Attorney Fees — Grounds for Awarding Good faith of defendants did not bar recovery of attorney's fees by public official who prevailed in action to retain official position from which he was removed in violation of statute.

9. Costs — Attorney Fees — Time for Request Motion for attorney's fees was not untimely under supreme court rule because not made within fifteen days after date on the certificate of the order. Supreme Ct. R. 23.

10. Costs — Attorney Fees — Time for Request Provision of rule of supreme court requiring filing of motions within fifteen days after date on the certificate of the order governs only the taxation of costs, and does not apply to motions for attorney's fees. Supreme Ct. R. 23.

11. Costs — Statutes — Construction Statutes governing payment of costs to the prevailing party do not apply to attorney's fees. RSA chs. 490, 525.

12. Costs — Attorney Fees — Time for Request Absent statute or court rule governing the time in which attorney's fees must be requested, the request is proper if made within a reasonable time.

13. Costs — Attorney Fees — Time for Request Where plaintiff, who instituted action in April, 1980 to retain public office from which he alleged he had been wrongfully removed, sought attorney's fees in original writ of mandamus and filed motion for attorney's fees with trial court in November, 1980, after supreme court decision in his favor entered in September, 1980 and after failure of attempts to secure voluntary payment of fees by defendants, plaintiff did not wait an unreasonable amount of time before filing motion for attorney's fees.

Hanrahan Michael P.A., of Merrimack (Gregory E. Michael on the brief and orally), for the plaintiff.

Bossie, Kelley Hodes, of Manchester (Robert F. Bossie on the brief and orally), for the defendants.


This appeal involves a question of first impression: May a public official, who prevails in an action to retain his official position, recover attorney's fees for that action? We hold that he may.

The plaintiff, Edward Silva, then a selectman for the Town of Merrimack, brought an action against the other selectmen on April 11, 1980, contending that he had been wrongfully removed from the position of ex-officio representative on the town planning board before the expiration of his term, in violation of RSA 36:5 II (Supp. 1979). Both parties have stipulated that each has acted in good faith. On September 10, 1980, this court held that he had been removed illegally. Silva v. Botsch, 120 N.H. 600, 420 A.2d 301 (1980).

On October 2, 1980, the selectmen refused the plaintiff's request for attorney's fees and, on November 6, 1980, they denied a request to reconsider their decision. The plaintiff, on November 26, 1980, filed a motion for costs and payment of attorney's fees in the superior court. The Trial Court (Bean, J.) denied the motion, and the plaintiff appealed.

The general American rule is that each party must bear his own attorney's fees. Pugliese v. Town of Northwood, 119 N.H. 743, 752, 408 A.2d 113, 118 (1979); Morse v. Ford, 118 N.H. 280, 281, 385 A.2d 229, 230 (1978). In many instances, however, the legislature has authorized an award of attorney's fees. See, e.g., Douglas, Statutory Authorization for Attorney's Fees in New Hampshire, 17 N.H.B.J. 205 (1976). Other exceptions to the general rule have been judicially created. See Harkeem v. Adams, 117 N.H. 687, 690, 377 A.2d 617, 619 (1977) and citations therein. "These exceptions are flexible, not absolute, and have been extended on occasion." Id. at 690, 377 A.2d at 619 (citations omitted).

In this case, we find it appropriate to award attorney's fees to the prevailing party. The plaintiff, a selectman, expended his own funds to retain his position on the planning board, to which he was statutorily entitled. Silva v. Botsch, 120 N.H. 600, 420 A.2d 301 (1980); see RSA 36:5 II (Supp. 1979). In so doing, the plaintiff vindicated the legislature's express command. RSA 36:5 II (Supp. 1979).

As an elected town official, the plaintiff has assumed a special position as a public trustee. See Sherburne v. Portsmouth, 72 N.H. 539, 542, 58 A. 38, 40 (1904). A town official is elected by his fellow citizens to administer the affairs of the municipality. Id.; State v. Wimpfheimer, 69 N.H. 166, 169 (1897). He is also required to take the oath to faithfully and impartially uphold the constitution and laws of New Hampshire. RSA 669:9 (Supp. 1979); see N.H. CONST. pt. II, art. 84, and thus assumes a special duty.

[2-4] It is well settled in New Hampshire that when a trustee successfully litigates in good faith for the primary benefit of the trust as a whole, the court may award him attorney's fees. Concord Nat. Bank v. Haverhill, 101 N.H. 416, 418-19, 145 A.2d 61, 63 (1958); Burke v. Railroad, 62 N.H. 531, 532 (1883). This exception to the general rule precluding the award of attorney's fees may be expanded to include this case, since the plaintiff's action conferred a "substantial benefit" on the town of Merrimack and the State of New Hampshire. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393-94 (1970). In these circumstances, he should be able to recover his attorney's fees. "[W]hen overriding considerations so indicate, the award of fees lies within the power of the court, and is an appropriate tool in the court's arsenal to do justice and vindicate rights." Harkeem v. Adams, 117 N.H. at 690, 377 A.2d at 619.

The New Hampshire Legislature has shown its concern in this area. RSA 4:1 (Supp. 1979), amended by Laws 1981, ch. 179, provides for the payment of legal fees to a State official if the governor and council determine he is the prevailing party. Laws 1981, 179:1 (to be codified at RSA 4:1 IV). A county official who successfully defends himself in a removal proceeding is also entitled to attorney's fees. RSA 28:10-a (Supp. 1979). Local officials should have the same privilege."

[5-8] The defendants argue that the plaintiff cannot recover his attorney's fees because he has stipulated to the defendants' good faith. This argument fails, however, because the good or bad faith of the defendants is not a consideration in the award of attorney's fees under this exception, applicable to public officials. The bad faith conduct of the defendant is relevant only to the award of attorney's fees under the Harkeem exception, applicable to vexatious litigation. Pugliese v. Town of Northwood, 119 N.H. 743, 752, 408 A.2d 113, 119 (1979); see Harkeem v. Adams, 117 N.H. at 690-91, 377 A.2d at 619. Rather, the good faith of the party requesting attorney's fees is important, just as it is when attorney's fees are requested by a trustee litigating for the benefit of a trust. See Concord Nat. Bank v. Haverhill, 101 N.H. at 419, 145 A.2d at 63. Here, the defendants have stipulated to the plaintiff's good faith.

[9-12] The defendants next contend that the plaintiff's motion for attorney's fees was untimely because it was not made within fifteen days after the date on the certificate of the order. Supreme Court Rule 23. We disagree. The fifteen-day limit in Rule 23 governs only the taxation of costs. RSA chs. 525 and 490 govern the payment of costs to the prevailing party. Allowable costs, defined in RSA 525:13-19 and 490:21-23, do not include attorney's fees. Furthermore, unlike costs, which are either fixed by statute or easily ascertainable, attorney's fees may be subject to dispute or negotiation. Absent a statute or court rule governing the time in which attorney's fees must be requested, the request is proper if made within a reasonable time.

The plaintiff had asked for attorney's fees in his original writ of mandamus. The order of certification in Silva v. Botsch, 120 N.H. 600, 420 A.2d 301 (1980) was dated September 17, 1980. The plaintiff made two unsuccessful requests to the selectmen before he finally made a motion before the trial court for attorney's fees. We cannot say that the plaintiff waited an unreasonable amount of time before filing his motion, especially when any delay was due to his attempts to have the defendants voluntarily pay the fees. See Royer v. Adams, 121 N.H. 1024, 1028, 437 A.2d 316, 319 (1981) and cases cited therein. White v. N.H. Dept. of Employment Sec., 629 F.2d 697 (1st Cir. 1980), cert. granted, 101 S. Ct. 1692 (1981), can also be distinguished because attorney's fees were first requested nearly six months after a consent decree was entered. Id. at 699.

We therefore hold that the plaintiff, Edward Silva, is entitled to an award of attorney's fees. He was a local official who was successful in litigation to retain his official position. We remand to the trial court for a determination of the reasonable amount of attorney's fees that he should receive.

Reversed and remanded.

BOIS, J., did not sit; the others concurred.


Summaries of

Silva v. Botsch

Supreme Court of New Hampshire Hillsborough
Nov 20, 1981
121 N.H. 1041 (N.H. 1981)

finding that "costs" as defined in RSA chapters 490 and 525 do not include attorney's fees

Summary of this case from Smith v. Town of Wolfeboro

In Silva, we held that a town selectman who successfully challenged his removal from office was entitled to attorney's fees from the other selectmen because, as a public trustee elected to administer municipal affairs, his litigation not only vindicated his own right to hold office, but also conferred a substantial benefit on the town he served.

Summary of this case from Roger Bedard v. Town of Alexandria

In Silva and Irwin Marine, we concluded that a prevailing party was entitled to attorney's fees if that party had conferred a "substantial benefit" upon the community at large.

Summary of this case from Board of Water Comm'rs, Laconia Water Works v. Mooney

prevailing party entitled to attorney's fees after he "expended his own funds to retain his position on the planning board, to which he was statutorily entitled . . . [thereby] vindicat[ing] the legislature's express command"

Summary of this case from Board of Water Comm'rs, Laconia Water Works v. Mooney
Case details for

Silva v. Botsch

Case Details

Full title:EDWARD J. SILVA v. DONALD H. BOTSCH a

Court:Supreme Court of New Hampshire Hillsborough

Date published: Nov 20, 1981

Citations

121 N.H. 1041 (N.H. 1981)
437 A.2d 313

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