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Nichols v. State Farm Fire and Casualty Company8/11/2000
m. In reaching this conclusion, we do not reach the issue as to whether Gittlein, and State Farm as Gittlein's agent, had an obligation -- potentially enforceable with a Sweet remedy -- to preserve the ladder once Nichols's claim was known. We view the question before us as whether a separate claim for negligent spoliation can be maintained against State Farm. That question we answer in the negative based on Sweet. Further questions as to what a defendant should do with respect to important evidence in the defendant's possession or control once a claim is asserted are beyond the scope of this appeal.
2. State Farm was entitled to summary judgment of the claims of reckless or intentional spoliation.
Nichols has also pled intentional and reckless spoliation. But Nichols offers no evidence to support this allegation. In fact, at his deposition he was asked what facts would indicate that State Farm acted negligently, intentionally, or recklessly in failing to preserve the ladder. He admitted he knew of none and opined only that State Farm acted negligently. Accordingly, we conclude that Nichols's claims based on intentional or reckless conduct were properly dismissed.
B. Nichols's Appeal of the Protective Order Is Untimely.
Nichols argues that the trial court should have required State Farm to obey the October motion to compel. But this issue is now moot because State Farm is no longer a party to the case and the materials requested would not have undercut State Farm's entitlement to summary judgment.
Nichols also argues that the trial court should not have granted the protective order. But this point is not properly part of this appeal. The protective order was granted to Gittlein, not State Farm. Gittlein is not a party to this appeal. Nor has there been any final judgment in Nichols's case against Gittlein. Therefore, we decline to rule on the trial court's granting of the protective order.
C. The Trial Court Did Not Err in Its Award of Attorney's Fees.
Under Civil Rule 82(b) a trial court is obligated to award the prevailing party in a suit resolved before trial twenty percent of its actual attorney's fees. If the trial court deviates from this formula, it must provide a written explanation for doing so.
Here, the trial court's award was consistent with Rule 82(b)(2) and was supported by numerous affidavits and billing records. Nichols appeals the award, claiming that State Farm's billing was excessive and that the trial court should have given reasons for its finding that the billing was not excessive.
But the trial court is under no obligation to give reasons for an award that complies with the percentages expressed in Rule 82(b)(2). We will reverse an award of attorney's fees only if the award is "arbitrary, capricious, manifestly unreasonable, or stems from improper motive." Nichols has not made a sufficient showing to support reversal under this standard.
V. CONCLUSION
AFFIRMED.
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