Section 536.087

Title XXXVI STATUTORY ACTIONS AND TORTS

Chapter 536

Effective - 28 Aug 1989   

  536.087.  Reasonable fees and expenses awarded prevailing party in civil action or agency proceeding — application, content, filed with court or agency where party appeared — appeal by state, effect — power of court or agency to reduce requested amount or deny, when — form of award — judicial review, when. — 1.  A party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the state, shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency proceeding, unless the court or agency finds that the position of the state was substantially justified or that special circumstances make an award unjust.

  2.  In awarding reasonable fees and expenses under this section to a party who prevails in any action for judicial review of an agency proceeding, the court shall include in that award reasonable fees and expenses incurred during such agency proceeding unless the court finds that during such agency proceeding the position of the state was substantially justified, or that special circumstances make an award unjust.

  3.  A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in an agency proceeding or final judgment in a civil action, submit to the court, agency or commission which rendered the final disposition or judgment an application which shows that the party is a prevailing party and is eligible to receive an award under this section, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed.  The party shall also allege that the position of the state was not substantially justified.  The fact that the state has lost the agency proceeding or civil action creates no legal presumption that its position was not substantially justified.  Whether or not the position of the state was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by an agency upon which a civil action is based) which is made in the agency proceeding or civil action for which fees and other expenses are sought, and on the basis of the record of any hearing the court or agency deems appropriate to determine whether an award of reasonable fees and expenses should be made, provided that any such hearing shall be limited to consideration of matters which affected the agency's decision leading to the position at issue in the fee application.

  4.  A prevailing party in an agency proceeding shall submit an application for fees and expenses to the administrative body before which the party prevailed.  A prevailing party in a civil action on appeal from an agency proceeding shall submit an application for fees and expenses to the court.  The filing of an application shall not stay the time for appealing the merits of a case.  When the state appeals the underlying merits of an adversary proceeding, no decision on the application for fees and other expenses in connection with that adversary proceeding shall be made under this section until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.

  5.  The court or agency may either reduce the amount to be awarded or deny any award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.

  6.  The decision of a court or an agency on the application for reasonable fees and expenses shall be in writing, separate from the judgment or order of the court or the administrative decision which determined the prevailing party, and shall include written findings and conclusions and the reason or basis therefor.  The decision of a court or an agency on the application for fees and other expenses shall be final, subject respectively to appeal or judicial review.

  7.  If a party or the state is dissatisfied with a determination of fees and other expenses made in an agency proceeding, that party or the state may within thirty days after the determination is made, seek judicial review of that determination from the court having jurisdiction to review the merits of the underlying decision of the agency adversary proceeding.  If a party or the state is dissatisfied with a determination of fees and other expenses made in a civil action arising from an agency proceeding, that party or the state may, within the time permitted by law, appeal that order or judgment to the appellate court having jurisdiction to review the merits of that order or judgment.  The reviewing or appellate court's determination on any judicial review or appeal heard under this subsection shall be based solely on the record made before the agency or court below.  The court may modify, reverse or reverse and remand the determination of fees and other expenses if the court finds that the award or failure to make an award of fees and other expenses, or the calculation of the amount of the award, was arbitrary and capricious, was unreasonable, was unsupported by competent and substantial evidence, or was made contrary to law or in excess of the court's or agency's jurisdiction.  Awards made pursuant to this act^* shall be payable from amounts appropriated therefor.  The state agency against which the award was made shall request an appropriation to pay the award.

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(L. 1989 H.B. 143 § 5)

*"This act" (H.B. 143, 1989) contained numerous sections. Consult Disposition of Sections table for a definitive listing.

(1998) This section supersedes prior case law whereby wrongfully dismissed state employees could increase back pay awards by amount of attorney fees and expenses incurred in obtaining reinstatement in certain cases.  McGhee v. Dixon, 973 S.W.2d 847 (Mo.banc).

(1999) Application of section granting Supreme Court original appellate jurisdiction over appeal from administrative denial of taxpayer's request for fees and expenses in state tax proceeding was unconstitutional.  Greenbriar Hills Country Club v. Director of Revenue, 2 S.W.3d 798 (Mo.banc).