author: DAVIS, Judge:

text:
    2002 UT App 406
    MACRIS & ASSOCIATES, INC., Plaintiff and Appellant, v. NEWAYS, INC.; Thomas E. Mower; and Leslie D. Mower, Defendants and Appellees.
    No. 20010755-CA.
    Court of Appeals of Utah.
    Nov. 29, 2002.

      M. David Eckersley, Prince Yeates & Geldzahler, Salt Lake City, for Appellant.
    Wade S. Winegar, Christopher S. Crump, Scott T. Temby, and Bruce R. Murdock, Salem, for Appellees.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

DAVIS, Judge:

¶ 1 Plaintiff Macris & Associates, Inc. (Ma-cris) appeals from the trial court’s decision to grant summary judgment for Defendants Neways, Inc. (Neways), Thomas E. Mower, and Leslie D. Mower. The trial court granted Neways and Mowers’s motion for summary judgment, ruling Neways and Mowers were not liable to Macris for consequential or punitive damages. We reverse and remand.

BACKGROUND

¶2 On April 17, 1991, Macris filed suit against Images and Attitude, Inc. (Images), owned by Mowers, claiming breach of contract.

¶ 3 On September 1, 1992, Images sold its assets to Neways. Consequently, on February 14, 1995, Macris filed suit against Ne-ways and Mowers, claiming fraudulent conveyance, successor liability, and alter ego, asserting that the transfer of assets from Images to Neways left Images without sufficient assets to cover any judgment rendered against it in Macris Z.

¶ 4 Macris I went to trial on February 16, 1995. On September 15, 1995, the trial court ruled in favor of Maoris and rendered a judgment against Images for $360,681.20.

¶ 5 On October 19, 1995, Neways and Mowers motioned for summary judgment in Macris II, contending that Macris’s claims were barred by res judicata. The trial court granted Neways and Mowers’s motion, holding res judicata barred Maoris from recovering further contract damages.

¶ 6 Macris appealed and we reversed. See Macris & Assocs., Inc. v. Neways, Inc., 1999 UT App 230, ¶ 17, 986 P.2d 748. The Utah Supreme Court granted certiorari to Neways and Mowers and affirmed, holding that Ma-cris’s claims of alter ego, fraudulent conveyance, and successor liability were not barred by res judicata. See Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶47, 16 P.3d 1214. However, the supreme court further held that issue preclusion barred Macris from seeking additional contract damages from Neways and Mowers in Macris II See id.

¶ 7 On February 1, 2001, Macris filed a demand for payment of the Macris I judgment. On February 16, 2001, Neways International, Inc. (Neways International) paid Macris $746,356.97, which covered the entire Macris I judgment and interest.

¶ 8 Following payment, Neways and Mowers again moved for summary judgment in Macris II, alleging that Macns II was moot because the Macris I judgment was paid and Macris was barred from seeking further contract damages in Macris II. In response, Macris asserted that the attorney fees incurred in Macris II were recoverable under the third-party litigation exception to the general rule that fees are not recoverable in a contract or tort action unless provided for in the contract or by statute because the fees were a consequence of the transfer of assets precipitated by the breach and subsequent litigation in Macris /.

¶ 9 In an order dated August 2, 2001, the trial court granted Mowers and Neways’s motion for summary judgment, holding Ma-cris could not recover consequential or punitive damages. First, the trial court ruled that Macris could not recover consequential damages because “attorney[] fees are not recoverable in a contract action unless provided by statute or by contract,” see, e.g., Collier v. Heinz, 827 P.2d 982, 983 (Utah Ct.App.1992), and “[njeither of these exist.” The trial court also determined that the third-party litigation exception proposed by Macris did not alter this outcome because, although the “third party litigation exception may apply in contract actions,” Macris’s case “ar[osej under statute — the fraudulent transfer act[ ],” and the plain language of the fraudulent transfer act “did not provide an attorney’s fee remedy.” Second, the trial court ruled that Macris could not recover punitive damages because punitive damages “may be awarded only if compensatory or general damages are awarded,” Utah Code Ann. § 78 — 18—l(l)(a) (Supp.2002), and Macris received “no award of general or compensatory damages” in Macris II. Furthermore, the trial court declined to “allow punitive damages as an element of recovery in a fraudulent transfer action,” because it “decline[d] to find a remedy in a statute which the legislature did not see fit to include.”

10 Macris appeals the trial court’s decision to grant summary judgment in favor of Mowers and Neways.

ISSUE AND STANDARD OF REVIEW

¶ 11 The issue on appeal is whether the trial court correctly granted Mowers and Ne-ways’s motion for summary judgment, ruling that Mowers and Neways were not liable to Macris for consequential or punitive damages. “Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Jones v. ERA Brokers Consol., 2000 UT 61, ¶ 8, 6 P.3d 1129; see also Utah R. Civ. P. 56(c). “Because entitlement to summary judgment is a question of law, we accord no deference to the trial court’s resolution of the legal issues presented.” K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994). “We determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.” Berenda v. Langford, 914 P.2d 45, 50 (Utah 1996) (citations and quotations omitted).

ANALYSIS

I. Attorney Fees

¶ 12 Macris claims the trial court erred in granting Mowers and Neways’s motion for summary judgment on the basis that Macris was not entitled to attorney fees.

¶ 13 “The long-standing rule in Utah is that attorney fees cannot be recovered unless provided for by statute or contract.” Collier v. Heinz, 827 P.2d 982, 983 (Utah Ct.App.1992). “However, this general rule is not without exception.” South Sanpitch Co. v. Pack, 765 P.2d 1279, 1282 (Utah Ct.App.1988). “A well-established exception to this general rule allows recovery of attorney fees as consequential damages, but only in the limited situation where the defendant’s [wrongful conduct] foreseeably cause[s] the plaintiff to incur attorney fees through litigation with a third party.” Collier, 827 P.2d at 983.

¶ 14 Thus far, Utah courts have applied the third-party litigation exception only to breach of contract and tort cases. See, e.g., id. at 983-84 (holding the third-party litigation exception applies “where the defendant’s breach of contract foreseeably caused the plaintiff to incur attorney fees through litigation with a third party”); South Sanpitch Co., 765 P.2d at 1282-83 (holding that “when the natural consequence of one’s negligence is another’s involvement in a dispute with a third party, attorney fees reasonably incurred in resolving the dispute are recoverable from the negligent party as an element of damages”).

¶ 15 In this case, the trial court acknowledged the existence of the third-party litigation exception but refused to apply it because this case was brought under the Uniform Fraudulent Transfer Act (UFTA). See Utah Code Ann. §§ 25-6-1 to -13 (1998 & Supp. 2002). The trial court reasoned that UFTA is statutory law, not tort or contract law, so the exception does not apply. We disagree.

¶ 16 The cause of action for fraudulent transfer was not created by UFTA. Rather, “ ‘[t]he law has long held that transfers of property designed to place a debtor’s assets beyond the reach of the debtor’s creditors are void as to the creditors.’ ” National Loan Investors, L.P. v. Givens, 952 P.2d 1067, 1069 (Utah 1998) (citation omitted); see also Butler v. Wilkinson, 740 P.2d 1244, 1260 (Utah 1987) (citing early common law cases). UFTA is simply “a codification of the common law that provided a remedy against debtors who sought to conceal their assets from creditors.” Givens, 952 P.2d at 1069. Accordingly, “[u]nless displaced by [UFTA], the principles of law and equity, including merchant law and the law relating to principal and agent, equitable subordination, estop-pel, laches, fraud, misrepresentation, duress, coercion, mistake, insolvency, or other validating or invalidating cause, supplement [UFTA] ’s provisions.” Utah Code Ann. § 25-6-11. Furthermore, “[bjecause [UFTA] is remedial in nature, it should be liberally construed.” Givens, 952 P.2d at 1069.

¶ 17 We see no reason why a plaintiff in a fraudulent transfer case who would have had a claim for attorney fees under the third-party litigation exception before UFTA was enacted should now be denied attorney fees. UFTA does not expressly address attorney fees. Instead, it expressly grants courts the authority to employ a full array of remedial measures insofar as they are warranted under the particular facts of the case. See Utah Code Ann. § 25—6—8(1)(c)(iii) (“In an action for relief against a transfer or obligation under this chapter, a creditor ... may obtain ... subject to applicable principles of equity and in accordance with applicable rules of civil procedure ... any other relief the circumstances may require.”); Volk Constr. Co. v. Wilmescherr Drusch Roofing Co., 58 S.W.3d 897, 900 (Mo.Ct.App.2001). Therefore, since UFTA is silent as to the common law third-party litigation exception, we hold the third-party litigation exception is retained from the common law and may be applied to causes of action that arise under UFTA.

¶ 18 However, in this case, even though Macris is entitled to seek attorney fees incurred in pursuing a UFTA claim using the third-party litigation exception, it is limited by the requirements of the exception.

¶ 19 To recover under the third-party litigation exception, the plaintiff must seek attorney fees from the defendant whose action caused the third-party litigation. See South Sanpitch Co., 765 P.2d at 1283 (holding the third-party litigation exception applies where the plaintiff “seeks only those fees incurred in litigation against others to undo the problem [the defendant] negligently caused”). In this case, Images is the defendant whose action caused Macris to bring Macris II. Thus, to obtain attorney fees under the third-party litigation exception, Ma-cris may seek attorney fees from Images. However, Images is not a party to the present proceeding.

¶ 20 Instead, Macris alleges successor liability and alter ego in its complaint. Under successor liability, “ ‘where one company sells or otherwise transfers all its assets to another company,’” the purchaser is liable for the seller’s debts and liabilities if:

(1) the purchaser expressly or impliedly agrees to assume such debts; (2) the transaction amounts to a consolidation or merger of the seller and purchaser; (3) the purchasing corporation is merely a continuation of the selling corporation; or (4) the transaction is entered into [by the seller and the purchaser] fraudulently in order to escape liability for such debts.

Macris & Assocs., Inc. v. Neways, Inc., 1999 UT App 230, ¶ 15, 986 P.2d 748 (citation omitted), aff'd, 2000 UT 93, 16 P.3d 1214. Accordingly, if Macris is successful in its claim that Neways is liable to Macris “for all amounts due or to become due from Images to Macris” because “Neways is the successor corporation to Images,” then Macris may seek attorney fees from Neways under the third-party litigation exception.

¶ 21 Similarly, under the alter ego doctrine, the trial court may “disregard the corporate entity” and hold an individual liable if: (1) there is “such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, viz., the corporation is, in fact, the alter ego of one or a few individuals;” and (2) “the observance of the corporate form would sanction a fraud, promote injustice, or an inequitable result would follow.” Norman v. Murray First Thrift & Loan Co., 596 P.2d 1028, 1030 (Utah 1979). Thus, based upon the way Macris’s complaint is framed, if Macris can establish that Images is the alter ego of Neways, then the trial court may hold Ne-ways liable for Images’s actions. If Macris can then establish that Neways is the alter ego of Mowers, then Macris may seek attorney fees from Mowers. Whether successor liability and alter ego exist involve questions of fact inappropriate for summary judgment.

¶ 22 Furthermore, in order to recover attorney fees under the third-party litigation exception, Macris must also show that Ma-cris II was a natural consequence of Images’s breach and that it was necessary to bring the action. See South Sanpitch Co., 765 P.2d at 1282. This is also a question of fact inappropriate for summary judgment.

¶23 Even if Macris is awarded attorney fees under the third-party litigation exception, such fees are limited to those incurred before the contract claim against Images was satisfied. “Under the third-party [litigation] exception, only the fees incurred in litigation with the third party are recoverable as consequential damages.” Collier, 827 P.2d at 983-84. Macris cannot recover attorney fees incurred after Macris I was satisfied because these fees were incurred not in litigation with a third party to recover its contract damages, but in pursuit of Macris’s claim for attorney fees as consequential damages, which would amount to a fee upon a fee. Therefore, if Macris is entitled to attorney fees under the third-party litigation exception, it is only entitled to fees incurred in the third party litigation before Neways International paid the Macris I judgment.

II. Punitive Damages

¶24 Macris claims the trial court erred by granting summary judgment for Mowers and Neways because Macris was not entitled to punitive damages.

¶25 “Punitive damages are the exception rather than the rule and should be imposed cautiously.” Von Hake v. Thomas, 705 P.2d 766, 771 (Utah 1985); see also First Sec. Bank of Utah, N.A v. J.B.J. Feedyards, Inc., 653 P.2d 591, 598 (Utah 1982) (“Punitive damages constitute ‘an extraordinary remedy ... outside the field of usual redressful remedies’ which ‘should be applied with caution lest, engendered by passion or prejudice because of defendant’s wrongdoing, the award becomes unrealistic or unreasonable.’ ” (Citation and footnote omitted.)).

¶26 Accordingly, “[ejxcept as otherwise provided by statute,” a trial court may award punitive damages only if: (1) “compensatory or general damages are awarded,” and (2) “it is established by clear and convincing evidence that the acts or omissions of the tort-feasor are the result of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.” Utah Code Ann. § 78-18-l(l)(a) (Supp.2002).

¶ 27 Therefore, in this case, Macris is entitled to seek punitive damages only if it is awarded attorney fees as consequential damages in accordance with our decision and is otherwise entitled to punitive damages. These are questions of fact inappropriate for summary judgment.

CONCLUSION

¶ 28 We conclude that the trial court erred in granting summary judgment for Mowers and Neways. Summary judgment is inappropriate because issues of fact exist as to whether Macris is entitled to attorney fees under the third-party litigation exception and whether Macris is entitled to punitive damages.

¶ 29 WE CONCUR: PAMELA T. GREENWOOD and WILLIAM A. THORNE Jr., Judges.

      . We refer to Thomas E. Mower and Leslie D. Mower collectively as Mowers.

      . It is well established that "in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). We recite the facts of this case accordingly.

      . We refer to this action as Macris I.

      . We refer to this action as Macris II.

      . The parties on appeal do not argue that consequential and punitive damages are additional contract damages.

      . Neways International is a corporation owned by Mowers separate from both Images and Ne-ways and is not a party to either Macris I or Macris II.

      . Although Macris's complaint in Macris II asserts a direct claim against Mowers and Neways under the Uniform Fraudulent Transfer Act, it makes no specific claim for attorney fees under the statute or pursuant to the third-party litigation exception. Instead, in response to Mowers and Neways’s motion for summary judgment, Macris argued it was entitled to fees under the exception because only a consequential damage award would support a claim for punitive damages, and the fact that the third-party litigation was a claim under the fraudulent transfer act was not a bar to recovery of fees. This is Ma-cris's argument on appeal, and we conduct our analysis accordingly.

      . There are numerous exceptions to the general attorney fees rule because "a court has inherent equitable power to award reasonable attorney fees when it deems it appropriate in the interest of justice and equity." Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 782 (Utah 1994). Exceptions include: "when a party acts 'in bad faith, vexatiously, wantonly, or for oppressive reasons,' ” id. (citation omitted); "when nonparty class members [in a class action case] are financially benefitted as a result of the efforts of a few litigants who successfully create a fund that benefits the entire class,” id.; "when a beneficiary sues a trustee for violation of the trust and obtains a recovery for all other beneficiaries whose rights were also violated by the trustee,” id. at 783; when a party acts as a " 'private attorney genera! " and vindicates " 'a strong or societally important public policy,' " id. (citation omitted); "when a plaintiff's litigation confers 'a substantial benefit on the members of an ascertainable class,' " id. at 782 n. 18 (citation omitted); and when an insurer breaches an insurance contract, see Collier v. Heinz, 827 P.2d 982, 984 (Utah Ct.App.1992).

      . For convenience, we cite to the most recent version of the Utah Code. There has been no significant change to UFTA that would affect our analysis.

      . We do not decide whether attorney fees are recoverable under UFTA in a direct claim against the transferor or transferee.

      . Mowers and Neways rely on Selvage v. J.J. Johnson & Assocs., 910 P.2d 1252 (Utah Ct.App.1996), to support their argument that this court has previously determined UFTA does not allow attorney fees. However, in Selvage, this court was interpreting Utah Code Ann. § 25-6-9(2) (1995), a section of UFTA that discusses the remedies available to a creditor following a debt- or’s good faith transfer of assets. Selvage, 910 P.2d at 1263-64. Under this section, a creditor is entitled to recover "the amount necessary to satisfy the creditor's claim." Utah Code Ann. § 25-6-9(2). The Selvage court determined a creditor's claim does not include attorney fees. Id. at 1264. Here, Macris does not allege that Mowers and Neways were involved in a good faith transfer, but a fraudulent transfer governed by Utah Code Ann. § 25-6-8.

      . In its complaint, Macris does not claim that Images is the alter ego of Mowers. Instead, it asserts that "Neways is the alter ego of Images and vice versa,” and Mowers are "the alter ego of Neways, and vice versa.” The third-party litigation exception does not support a direct claim for attorney fees against Mowers and Ne-ways.

      . We note that Macris may not use its successor liability and alter ego claims to seek additional contract damages resulting from Images’s breach of contract. See Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 47, 16 P.3d 1214.


source: Caselaw Access Project

author: HILL, Chief Justice.

license: Public Domain

text:
    2003 WY 1
    BOARD OF TRUSTEES OF MEMORIAL HOSPITAL OF SHERIDAN COUNTY, Appellant (Respondent), v. Leslie MARTIN, Appellee (Petitioner).
    No. 02-40.
    Supreme Court of Wyoming.
    Jan. 6, 2003.
    Jay A. Gilbertz of Yonkee & Toner, LLP, Sheridan, Wyoming, Representing Appellant.
    Greg L. Goddard of Goddard, Perry and Vogel, Buffalo, Wyoming, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   HILL, Chief Justice.

[¶ 1] Appellant, Board of Trustees of Memorial Hospital of Sheridan County (Board), brings an appeal to this Court, challenging the order of the district court, which remanded Appellee’s, Leslie Martin’s (Martin), employment termination case to the Board for additional proceedings.

[¶2] We will dismiss the appeal on the basis that the district court’s order remanding to the Board for further proceedings is not an appealable order, as contemplated by W.R.A.P. 1.05, and send the matter back to the district court for enforcement of the remand order.

ISSUES

[¶ 3] The Board posits these issues:

I. Was there substantial evidence to support the Trustees’ conclusion that Leslie Martin was given a pre-termination meeting with her supervisors?
II. What procedure should be used to correct a clerical error in the findings of fact of an administrative agency which misidentified the date of a meeting, but is otherwise supported by the record?

Martin couches the issues in these terms:

1. Whether Memorial Hospital of Sheridan County followed the procedures set forth in its Employee Manual when terminating Appellee.
2. Whether the Board of Trustees for the Memorial Hospital of Sheridan County’s decision upholding Appellee’s termination was supported by substantial evidence in the record.

In its reply brief, the Board addresses two additional issues:

I. Whether the Appellee, having failed to cross-appeal, can attack the district court’s order and request relief greater than that granted by the district court.
II. If properly before this court, whether there is substantial evidence to support the Board’s decision upholding Martin’s termination.

FACTS

[¶ 4] The facts pertinent to this appeal are relatively brief, though the facts relevant to the determination of the validity of the Board’s action approving the termination of Martin’s employment are considerably more complex. As background, we will simply note that Martin was a pediatric nurse at the hospital and was -fired from her job on the basis that she revealed confidential patient information about an individual identified in the record as “J.W.” The hospital’s personnel manual authorizes termination for a violation of patient confidentiality. J.W. was a neighbor of Martin’s, and they had considerable differences between them as neighbors, principally because of Martin’s dogs. Martin had a sled dog team, and she kenneled 18 dogs on her property. On January 22, 2001, Martin was interviewed by Larque Richter, a friend to J.W. and a reporter for KOTA Territory, a television broadcast news organization. The subject of the interview was Martin’s sled dogs and an upcoming sled dog race. When Richter asked Martin if her dogs had caused problems with her neighbors, Martin told of her problems with J.W. and further stated that J.W. “was a drunk in my opinion and she was a detox case, meaning she ought to be in detox because she acts like it.”

[¶ 5] A week or so later, Richter reported that information to J.W. and J.W., in turn, reported it to the hospital, demanding action. As a first step in the disciplinary process Martin was asked to attend a “meeting” with her supervisors. At that meeting, the supervisors concluded that Martin admitted that she violated patient confidentiality. Martin was permitted to prepare her thoughts on the matter and had a second meeting with her supervisors. The thrust of Martin’s presentation at that meeting was to document the details of the disagreements she had experienced with J.W. The second meeting was brief, and Martin’s supervisors did not consider her materials relevant to the breach of patient confidentiality. It is now Martin’s contention that had she received notice of the purpose of the initial meeting, she would have been prepared to better explain that she knew of J.W.’s alcohol/drug problems from sources other than hospital records. Thus, while she did say the things attributed to her by Richter, that information was gleaned from contacts with J.W. that were unrelated to her duties as a nurse at the hospital.

[¶ 6] To a large extent, the termination was based upon the impression hospital personnel had that Martin admitted to a violation of the confidentiality policy. However, the record reflects that this impression actually may have been a conclusion reached by hospital personnel, rather than an actual confession to such a violation by Martin. Martin denied that she had revealed confidential hospital information. J.W. had, in fact, been a detox patient at the hospital on several occasions, but Martin had never been involved in her treatment, and so far as the hospital knew, Martin had never had access to J.W.’s hospital/medical records. In addition, Martin testified, and the record bears out, that she did not have notice of the subject of the meeting to which she was called until she arrived at that meeting, which resulted in her dismissal. It is this phase of the termination proceedings that caused concern for the district court. Martin had an otherwise unblemished record during her employment with the hospital. The Board approved the action terminating Martin’s employment.

[¶ 7] A petition to review that administrative action was filed in the district court under W.R.A.P. 12. The district court determined that the findings of fact in paragraph 12 of the Board of Trustees’ April 16, 2001 order were not supported by the record, and that Martin may not have had a sufficient opportunity to present defenses that she might have had to her termination, prior to the termination decision being made (and in some senses, then cast in concrete). For these reasons, it remanded the matter to the Board “for the limited purposes of allowing ... Martin to submit documents or statements in addition to those already part of the record in defense of her termination.” Clearly, the remand is for a limited purpose, but the transcript of the proceedings fleshes out the terse language of the remand order:

THE COURT: On behalf of the trial court, I’m determined not to substitute my judgment for the administrative agency who saw and heard applicable witnesses with respect to sufficiency of evidence; but I am still troubled by the procedure that the hospital followed, particularly in light of the statement from one of the witnesses that if an employee had presented evidence on February 14, 2001 that — and I’m paraphrasing — but to the effect that if she had not used her position at the hospital to gain information and divulge confidential information that it could have made a difference at that point. And, yet, it appears that the hospital had already made up its mind as to what it was going to do.
And in terms of the employee’s ability to appeal or question the termination, she apparently has still not received the written statement of the reasons for termination after the decision was made. And the hospital was arguing that, well, we really-all we did was make the recommendation that she would be fired as of February 16th, unless, of course, she changed our minds on February 14th. She didn’t change our minds, so the decision stands. That’s not really the way it’s supposed to work under the rules.
Counsel, the Court believes that there have been a couple of errors in the administrative proceedings that resulted in the termination of this employee. One, when you look at the Board of Trustees’ Findings of Fact and Conclusions of Law signed April 16, 2001 by chair Evelyn Ebzery, Finding 12, you see the determination that employee was given a pre-termination hearing with her supervisors on January 9th, 2001 and given an opportunity to explain the situation.
Aside from the obvious error that any meeting with the employee could not have been on January 9th but, rather, was February 9th, there’s a problem in designating that hearing as a pre-termination hearing. The pre-termination hearing is one contemplated in Subsection D on Page 26 of the handbook, not the investigation hearing. So making a conclusion at that point that the employee was given an opportunity to explain the situation is somewhat misleading in terms of analyzing whether or not personnel policies were followed.
There was a meeting on February 9th for purposes of conducting an investigation. The employee was not notified on that date that there had been a recommendation that she be terminated. The hospital did make a recommendation of termination at sometime prior to February 14 and did advise the employee on February 14th of their recommendation and provided some opportunity for explanation by employee, albeit brief, and basically telling employee that she was fired effective February 16th. So, the Court finds that she did not have sufficient opportunity to present any defenses that she might have had at that time.
What’s causing my hesitation and is troublesome to me, counsel, is that I’m not sure that this is going to make any difference, because even when questioned by counsel, employee did not give me any indication as to the type of new information she might be able to submit for the board’s consideration.
But based on the failure to follow their own personnel policies, the Court is going to remand this case to the hospital board— or the hospital’s administrative staff designated by the administrator for purposes of allowing employee an opportunity to submit documents or statements in addition to those already part of the record in defense of termination.

[¶ 8] The Board filed a notice of appeal seeking further review in this Court and challenging the district court’s remand order.

JURISDICTION

[¶ 9] The parties do not directly raise the matter, but we have determined that it is necessary for us to revisit the question of whether or not an order of the district court remanding an administrative agency case for further evidentiary proceedings is an appeal-able order under the Wyoming Rules of Appellate Procedure as they are currently formulated. W.R.A.P. 1.05 defines “appealable order” as follows:

An appealable order is:

(a) An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment; or
(b) An order affecting a substantial right made in a special proceeding; or
(c) An order made upon a summary application in an action after judgment; or
(d) An order, including a conditional order, granting a new trial on the grounds stated in Rule 59(a)(4) and (5), Wyo. R. Civ. P.; if an appeal is taken from such an order, the judgment shall remain final and in effect for the purposes of appeal by another party; or
(e) Interlocutory orders and decrees of the district courts which:
(1) Grant, continue, or modify injunctions, or dissolve injunctions, or refuse to dissolve or modify injunctions; or
(2) Appoint receivers, or issue orders to wind up receiverships, or to take steps to accomplish the purposes thereof, such as directing sales or other disposition of property.
(See Rule 13 for additional guidance on review of interlocutory orders.)

[¶ 10] In Big Horn County Commissioners v. Hinckley, 593 P.2d 573, 577 (Wyo.1979) (citing Arp v. State Highway Commission, 567 P.2d 736, 738-39 (Wyo.1977) and W.R.A.P. 1.05), we opined:

Turning first to Hinckley’s jurisdictional contentions, this court previously denied Hinckley’s motion to dismiss. This motion, which is renewed here, is premised on the belief that the district court’s order — remanding the case to the Board for a hearing on necessity and other issues — is not a final order under Rule 1.05, W.R.A.P., and our holding in Arp v. State Highway Commission, Wyo., 567 P.2d 736 (1977). We determined previously, and now hold, that the district court’s order affects a substantial right of the Board and prevents a judgment in favor of the Board’s establishment of a road by prescription under § 24-1-101, supra. It is, therefore, a final ap-pealable order under Rule 1.05(1), W.R.A.P.

[¶ 11] At the time the Hinckley decision was published, the mission of W.R.A.P. 1.05 was to define a “final order” and it provided:

A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment; (3) an order, including a conditional order, granting a new trial on the grounds stated in Rule 59(a)(4) and (5), W.R.C.P.; if an appeal is taken from such an order, the judgment shall remain final and in effect for the purposes of appeal by another party.

572-577 Wyo. Reporter, Rules Section, XXXV (1978).

[¶ 12] The 1992 amendments to the appellate rules discontinued the long-established reliance on the concept of a “final order” in favor of reliance on the more flexible concept of an “appealable order.” In addition, those amendments gave full recognition to the Court’s practice of granting writs of certiorari by adopting Rule 13. The comments, which accompanied the initial publication of that rule, were these:

Comment: This rule represents a major departure from the former rules. It encompasses former Rule 13, but it also provides for interlocutory appeals. It does reflect the practice of the Supreme Court with respect to Writs of Certiorari, but specific procedures are provided for accomplishing the petition. The discretion is vested in the reviewing court as distinguished from the certification procedure in which the discretion of the trial court is addressed initially.

823-832 Wyo Reporter, Rules Section, CU-CHI (1992).

[¶ 13] It is our conclusion that our state system is now different from that instituted in the federal courts where remand orders similar to those at issue here are appealable as “final orders.” See Forney v. Apfel, 524 U.S. 266, 118 S.Ct. 1984, 1986-88, 141 L.Ed.2d 269 (1998). However, because of the delay caused by such appeals, they are rare even in the federal system. Ill Richard J. Pierce Jr., Administrative Laio Treatise, § 18.1 at 1324 (4th ed.2002).

[¶ 14] W.R.A.P. 12.09(d) provides:

(d) The district court may, in its discretion, remand the case to the agency for proceedings in accordance with the direction of the court. The district court shall enter judgment reversing, vacating, remanding or modifying the order for errors appearing on the record.

[¶ 15] That rule invests the district court with discretion to remand an administrative action to the agency for additional proceedings if that is the appropriate remedy under the circumstances. We conclude that the district court exercised its discretion prudently in this matter.

[¶ 16] We hold that a judgment of the district court remanding an administrative proceeding to the agency for further proceedings is not an appealable order under W.R.A.P. 1.05. In those rare instances where review is deemed necessary because of the spectre of “irreparable harm” (or something of similar magnitude), Rule 13 is available as a safety valve, within the sound discretion of this Court. In this instance we will dismiss the appeal, but at the same time we have undertaken to treat the appeal as a petition for writ of review under Rule 13, which we deny. The only harm the Board might suffer is an enlargement of a back pay award should Martin succeed in the review process. The matter is remanded to the district court for further proceedings consistent with the district court’s judgment/order.

      . Hospital personnel took notes during the meeting(s) that supervisors had with Martin. Those notes were identified and discussed at the hearing, but were not made a part of the record on appeal.

      . That paragraph provides:
      12. Martin was given a pre-termination hearing with her supervisors, Denise Karjewski and Linda Benth, on January 9, 2001 and given an opportunity to explain the situation. During the pre-termination hearing, Martin admitted that she had revealed confidential patient information relating to J.W. to Larque Richter during her interview with Richter.

      . Our examination of the record reveals that the district court’s assessment of the hospital’s personnel rules is correct, and we need not burden this opinion with a verbatim recitation of those policies. We also acknowledge that those policies are clear beyond cavil that the unauthorized release of confidential patient information is a basis for immediate termination of an employee.


author: KITE, Justice.

text:
    2003 WY 2
    McNEILL FAMILY TRUST, Appellant (Defendant/Third Party Plaintiff), v. CENTURA BANK, Appellee (Plaintiff), and Sandra Dvorscak, Appellee (Defendant), and Meinhold, Stawiarski, Shapiro & Codilis, LLP; Lynn M. Janeway, individually; and Hayley Belt, individually, Appellees (Third Party Defendants). Centura Bank, Appellant (Plaintiff), v. McNeill Family Trust, Appellee (Defendant/Third Party Plaintiff). McNeill Family Trust, Appellant (Defendant/Third Party Plaintiff), v. Centura Bank, Appellee (Plaintiff).
    Nos. 02-43, 02-44, 02-59.
    Supreme Court of Wyoming.
    Jan. 8, 2003.

      Kate M. Fox of Davis & Cannon, Cheyenne, Wyoming; and Wm. Daniel Elsom and Teresa Elsom of Elsom & Elsom, Lawyers, Cody, Wyoming, Representing McNeill Family Trust.
    Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming, Representing Centura Bank.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Centura Bank commenced a foreclosure by power of sale proceeding on a first mortgage which was in default with $87,320.82 due. Centura’s attorneys apparently intended to cancel or postpone the sale because they had failed to notify a second mortgagee but did not do so. No bank representative attended the sale, and Bob G. McNeill, on behalf of the McNeill Family Trust (McNeill Trust), made the only bid in the amount of $20,000. The district court found the McNeill Trust’s bid price so low as to be unconscionable, and that finding, together with Centura’s mistakes, justified the exercise of equitable power to set the sale aside. In an effort to return all parties to the positions they held prior to the sale, the district court ordered Centura to pay the McNeill Trust’s attorney fees and costs. We reverse both the decision to set aside the original foreclosure sale and the award of attorney fees and remand to the district court.

ISSUES

[¶ 2] We rephrase the issues as follows:

I. Did the district court err when it found an unconscionably low sale price required the foreclosure sale be set aside?

II. Was the award of attorney fees and costs to the McNeill Trust supported by law?

FACTS

[¶ 3] On March 27, 1996, the Shoshone First Bank loaned Robert and Sandra Dvors-cak $89,625 and took a first mortgage on their Cody residence which had an appraisal value of $119,500. In September of 1996, U.S. Bank, formerly First Bank, made a $30,000 home equity loan to the Dvorscaks and took a second mortgage on the property. The first mortgage was assigned to Centura in March of 1997.

[¶ 4] The Dvorscaks filed a petition for Chapter 7 bankruptcy protection on November 12, 1997, listing the debts on the real property and provided notice to Centura and U.S. Bank. Pursuant to 11 U.S.C. § 362(a), an automatic stay went into effect when the bankruptcy was filed which precluded any creditor from taking legal action against the Dvorscaks or their bankruptcy estate property without first obtaining an order for relief from stay from the federal bankruptcy court. In March of 1998, Centura referred the Dvorscaks’ mortgage to the Colorado law firm of Meinhold, Stawiarski, Shapiro & Co-dilis, LLP (Centura’s attorneys) for foreclosure proceedings. Centura’s attorneys obtained a title report, which did not reflect U.S. Bank’s second mortgage, and began a foreclosure by power of sale proceeding pursuant to Wyo. Stat. Ann. §§ 34-A-101 through 34-4-113 (LexisNexis 2001) by notifying interested parties and publishing the notice of foreclosure in the Powell Tribune. Centura’s attorneys did not obtain relief from the bankruptcy stay prior to commencing the foreclosure process. U.S. Bank subsequently advised Centura’s attorneys of the second mortgage, and the attorneys apparently intended to cancel or postpone the scheduled foreclosure sale to allow notification of U.S. Bank and a restarting of the process. However, they failed to do so.

[¶ 5] Mr. McNeill, trustee of the McNeill Trust, saw the published foreclosure sale notice and attended the June 24, 1998, sale. The only other person in attendance was Richard Moser, a deputy sheriff who was there to conduct the sale. Mr. McNeill bid $20,000, and Deputy Moser accepted the bid. Either Deputy Moser or the sheriffs office support staff telephoned Centura’s law firm for instructions regarding the appropriate payee of the check. Deputy Moser informed Mr. McNeill that Centura was the appropriate payee. Mr. McNeil went to the bank, obtained a certified check for $20,000 in the name of Centura Bank as the payee, returned it to the sheriffs office, and obtained a certificate of purchase. When Mr. McNeill returned home, his wife advised him an attorney for Centura had left a telephone message. Mr. McNeill returned the telephone call, and the parties discussed the validity of the foreclosure sale as well as the possible exchange of money for Mr. McNeill’s surrender of the certificate of purchase. A Juné 25, 1998, letter from the law firm to Mr. McNeill documented the telephone call and cautioned that litigation could follow if the “erroneous” sale was not resolved.

[¶ 6] Centura’s attorneys filed a lawsuit on July 27, 1998, naming Mr. McNeill, the Dvorscaks, the Park County sheriff, and U.S. Bank as defendants and asserting:

10. As a result of mistake and the Sheriffs failure to ascertain the status of Centura’s bid and inquire into the absence of a Centura representative [at the foreclosure sale]; as a result of lack of notification to [U.S.] Bank of the sale as required to protect its due process rights; and as a result of Centura’s mistake in not withdrawing or postponing the sale, the Mortgagors, Centura, and [U.S.] Bank have all been deprived of their rights to obtain reasonable value for the property, to bid in the amounts of their liens, and/or to redeem the amounts of their liens from the sale in order to fully protect their interests.
11. Because of the sale, Defendant McNeill has received an improper and inequitably huge windfall.

The prayer for relief requested the sale be declared void and of no effect, the $20,000 payment be returned to Mr. McNeill, and a new sale be held. In October of 1998, Centu-ra’s attorneys filed a motion to dismiss contending they had just learned the Dvorscaks’ Chapter 7 bankruptcy was filed prior to the foreclosure sale and, therefore, the sale was void because it was conducted in violation of the automatic stay. The district court stayed the action pending resolution of these issues by the bankruptcy court. Centura filed a motion for relief from stay in the bankruptcy court asking that the sale in violation of the stay be held void and the stay be lifted to allow Centura’s state court action to proceed. The McNeill Trust and Mrs. Dvorscak filed objections. After a hearing, the bankruptcy court granted the motion for relief thereby permitting the state court proceedings to go forward and validating the foreclosure sale because “[t]o hold otherwise would unfairly reward Centura.” Centura filed a motion for reconsideration which was denied; however, it did not appeal the bankruptcy court’s holding that the automatic stay did not void the sale.

[¶ 7] Thereafter, in the state court action, the sheriff was dismissed, the McNeill Trust was substituted for Mr. McNeill as a defendant, and Centura filed an amended complaint making the same claim — the sale was void for violation of the automatic stay — -that had been unsuccessful in the bankruptcy court. Centura’s attorneys then filed a motion for judgment on the pleadings requesting that the district court declare the foreclosure sale void for unilateral mistakes, lack of notice to U.S. Bank, unjust enrichment by the McNeill Trust, irregularity of the sale, and unconscionability. The district court converted the motion to one for summary judgment and granted it ordering that all the parties be returned to their presale status. The court also directed Centura to pay the McNeill Trust’s attorney fees and costs of $82,458 in order to fully restore the parties to the presale circumstances. The McNeill Trust appealed the summary judgment, and Centura appealed the award of attorney fees.

STANDARD OF REVIEW

[¶8] This ease presents no factual disputes. Centura admits committing unilateral mistakes that inadvertently led to the foreclosure sale being held as originally scheduled. The district court granted summary judgment to Centura and invoked its equitable power to restore the parties to their preforeclosure sale status.

[¶ 9] This court has long recognized the foreclosure of a mortgage hen to be an equitable action. Marple v. Wyoming Production Credit Association, 750 P.2d 1315, 1317 (Wyo.1988); Baldwin v. McDonald, 24 Wyo. 108, 156 P. 27, 32 (1916). We have also embraced the concept that, “by adoption of the Wyoming Rules of Civil Procedure[,] ‘the distinction between actions at law and suits in equity has been abolished.’ W.R.C.P. 2.” Hyatt Brothers, Inc. ex rel. Hyatt v. Hyatt, 769 P.2d 329, 332 n. 2 (Wyo.1989). As one result of this abolition, we have approved the use of summary judgment in actions which were historically equitable in nature. Id.

[¶ 10] The Oklahoma Court of Civil Appeals, addressing a similar circumstance, held:

The underlying action, being one to foreclose a mortgage lien, is equitable in nature. Ordinarily, in reviewing a case of equitable cognizance a judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity. But because this comes to us from an order granting summary judgment the appellate standard of review is de novo.

Abboud v. Abboud, 2000 OK CIV APP 116, ¶ 4,14 P.3d 569, ¶ 4 (citations omitted). This court has often expressed the standard of review that summary judgment is proper “when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law.” Paulson v. Andicoechea, 926 P.2d 955, 957 (Wyo.1996). We examine the case in the same manner as the district court and treat the motion as if it were originally before us, using the identical materials and information presented to the district court. Pekas v. Thompson, 903 P.2d 532, 535 (Wyo.1995). Therefore, we review the district court’s order setting aside the foreclosure as a matter of law and de novo.

DISCUSSION

A. Summary Judgment and the Original Foreclosure Sale Set Aside

[¶ 11] “The public policy underlying the comprehensive framework governing foreclosure sales is a concern for swift, efficient, and final sales.” 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc., 85 Cal.App.4th 1279, 102 Cal.Rptr.2d 711, 716 (2001). “The obvious advantage of power of sale foreclosure is that it avoids the expense and delay of a judicial proceeding.” E. George Rudolph, The Wyoming Law of Mortgages § 4.1 at 63 (1995). Against the backdrop of these policy considerations, Cen-tura claimed that, even though its mistakes were unilateral, the sale should be set aside in equity because: the sale was inadvertently held due to mistakes committed by Centura’s attorneys; Centura did not attend the sale and did not notice U.S. Bank, the second mortgagee; the sale price was grossly inadequate; the McNeill Trust tendered a check shortly after the sale, not immediately upon the acceptance of the bid; and the McNeill Trust was unjustly enriched. The McNeill Trust maintained the original foreclosure sale was valid and, therefore, should not have been set aside and it was entitled to rely upon the finality of the foreclosure process.

[¶ 12] This court has not previously addressed whether a foreclosure sale can be set aside because of an inadequate price due to unilateral errors on the part of the mortgagee. In truth, we have very little precedent regarding foreclosure sales, ■ and the precedent we do have suggests a conservative approach with sales being set aside in only very limited circumstances. This view is evident in Justice Blume’s opinion in Delfelder v. Teton Land & Investment Co., 46 Wyo. 142, 24 P.2d 702 (1933).

[¶ 13] The facts in Delfelder are somewhat complicated, yet they are sufficiently compelling to warrant review. J.A. Delfelder and Evelyn M. Delfelder executed a $225,000 mortgage on all their property to John Hay. In doing so, Mrs. Delfelder legally waived her homestead rights. Shortly afterward, Mr. Delfelder died, and Mrs. Delfelder was appointed the executrix of his estate. The principal balance of the debt reduced to $70,000, apparently by application of the proceeds from the sale of livestock. Mrs. Del-felder also executed several renewal notes for the debt in the amount of $70,000 though no formal claim was filed on the debt with her as executrix. Mr. Hay assigned the mortgage to American National Bank which commenced foreclosure proceedings under the power of sale provision for the amount due at that time of $79,269. At the June 2, 1924, foreclosure sale, an agent of American National Bank purchased the property for $72,000. In March of 1926, the bank sold the property to Teton Land & Investment Co. In 1931, Teton Land & Investment Co. filed an action against Mrs. Delfelder to recover the premises. Mrs. Delfelder asserted the sale should be set aside and the action dismissed because of a number of alleged irregularities and her homestead exemption. 24 P.2d at 703. Justice Blume’s empathy for the widow’s condition and efforts to preserve the homestead were apparent:

We come then to the main question in the case, namely, whether or not the foreclosure of the mortgage was valid without presentation of the claim of the assignee of the mortgage to the executrix of the estate, in view of the fact that the defendant resided on the premises in controversy, and claimed the same, as her homestead under the statute. The point has given us an infinite amount of trouble. We have continually held that the laws relating to a homestead should be liberally construed. And, in view of that fact, we have labored long, and have delayed the decision in this case, with the hope of finding some way to save the homestead for Mrs. Delfelder without doing undue violence to other principles of law and equity involved in the case.

24 P.2d at 705. The court recognized the sale of exempt property is voidable, not void, depending on whether there is nonexempt property which could be liquidated first and other similar considerations. However, in the end, the court determined Mrs. Delfelder was prejudiced by her own actions, not by the mortgagee’s failure to file a claim with the estate:

The homestead could not have been saved ... without the sale of the farm lands. Should blame be fastened on the assignee of the mortgage because the foreclosure was not started sooner? We do not think so.... [W]e find in the case at bar the fact that the defendant herself, as executrix of the estate, at four different times gave, for the purpose of extending the time of payment, renewal notes for the original indebtedness under the mortgage, which operated, if not entirely so, at least almost like an allowance of the claim, even though not based on a formal claim filed with the estate: The first renewal note was given before, the last long after, the time of filing claims against the estate had expired. She was, accordingly, at least equally to blame for not proceeding more promptly in attempting to determine whether or not the homestead could have been saved. Suppose, then, the claim had been filed. By reason of the extension of the notes, the holder of the mortgage was unable to foreclose. Thus, as a result of defendant’s own act, taxes accrued, interest accumulated, and the amount ran up to that ultimately found to be due, and the possibility of saving the home became out of the question. ... The fact that these extensions were made by the defendant in her capacity as executrix should not, we think, make any difference. We have, in considering this matter, earnestly attempted to find out whether she might not, in some way, have been damaged by the nonfiling of the claim, but have been unsuccessful by reason of the stubborn facts confronting us....

24 P.2d at 711. In short, the court found the renewals delayed the foreclosure proceedings and the debt thereby increased to an amount sufficient to compromise the homestead exemption. Justice Blume wrote:

The essence of the defense herein is to have a sale under a mortgage set aside. Such a proceeding is one in equity.... And where, as in this ease, the sale was not absolutely void, but at most voidable, it would seem, that it should not be set aside unless she was prejudiced or damaged by the failure of the holder of the mortgage to file a claim ....

24 P.2d at 710-11 (emphasis added). Professor Rudolph, in a discussion of another issue in Delfelder, also recognized the court required that the mortgagor be prejudiced by the action of another in order to justify setting aside a foreclosure sale. Rudolph, The Wyoming Law of Mortgages, swpra, § 4.3 at 67.

[¶ 14] Some sixty-nine years later, Manion v. Chase Manhattan Mortgage Corporation, 2002 WY 49, ¶ 7, 43 P.3d 576, ¶ 7 (Wyo.2002), indicates this court’s continued reticence to set aside or vacate a foreclosure sale absent clear prejudice and irregularity of the proceedings even when an inadequate price has been paid:

Although no Wyoming case has addressed this area of law, the case law and other authorities establish a general rule that “a foreclosure sale free from fraud or irregularity will not be held invalid for inadequacy of the price.” Kantack v. Kreuer, 280 Minn. 232, 158 N.W.2d 842, 848 (1968); Giordano v. Stubbs, 228 Ga. 75, 184 S.E.2d 165, 168-69 (1971); West Roxbury Co-op. Bank v. Bowser, 324 Mass. 489, 87 N.E.2d 113, 115 (1949); Pentad Joint Venture v. First Nat’l Bank of La Grange, 797 S.W.2d 92, 95-96 (Tex.App.1990). Stated another way, “The fact that there is some inadequacy in the price at which property was sold is not sufficient ground for setting aside a sale under a power in a mortgage or trust deed where the sale was lawfully made and rightly conducted, with full opportunity for competition in the bidding, and without fraud, partiality, or oppression.” 59A C.J.S. Mortgages § 680 (1998) (footnote omitted).

This position is substantially consistent with the section in Restatement (Third) of Property: Mortgages entitled “Adequacy of Foreclosure Sale Price”:

(a) A foreclosure sale price obtained pursuant to a foreclosure proceeding that is otherwise regularly conducted in compliance with applicable law does not render the foreclosure defective unless the price is grossly inadequate.
(b) Subsection (a) applies to both power of sale and judicial foreclosure proceedings.

Restatement (Third) of Property: Mortgages § 8.3 at 581 (1997). The comments to this section reflect “close judicial scrutiny of the sale price is more justifiable when the price is being employed to calculate the amount of a deficiency judgment context.” Id., § 8.3 cmt. a at 583. In this case, there was no possibility of a deficiency judgment against the Dvorscaks because their liability for any deficiency was discharged due to the bankruptcy action.

[¶ 15] It can be reasonably inferred from the decision letters of April 4, 2000, and October 30, 2001, that the district court relied on both what it considered to be an unconscionably low sale price and Centura’s unilateral mistakes to invoke equity to set aside the foreclosure sale and attempt to return the parties to their presale status quo. We disagree that these circumstances justified setting aside the sale.

[¶ 16] As an initial matter, “[o]ne of the basic tenets of equity is that equitable remedies depend upon a showing by the claimant of clean hands.” Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 959 (Wyo.1999); see also Dewey v. Wentland, 2002 WY 2, ¶ 37, 38 P.3d 402, ¶ 37 (Wyo.2002). Centura does not come to this litigation with clean hands. Centura’s unilateral errors, and those of its legal representatives, set the stage for this dispute. The mistakes included the failure to: (1) identify and notice all lienholders prior to initiating the foreclosure proceeding; (2) observe the automatic bankruptcy stay; (3) effectively postpone or cancel the foreclosure sale; and (4) attend the foreclosure sale. A mistake by only one of the parties ordinarily does not offer a reason for a remedy for that party unless the mistake was produced by the fraudulent or inequitable conduct of the other party. Givens v. Fowler, 984 P.2d 1092, 1096 (Wyo.1999); Raymond v. Steen, 882 P.2d 852, 855 (Wyo.1994); 27A Am.Jur.2d Equity § 12 (1996). Following these acts of misfeasance, Centura attempted to strong-arm the McNeill Trust into surrendering the certificate of sale and to have the bankruptcy court void the sale despite Cen-tura’s own violation of the stay. The latter tactic backfired when the bankruptcy court recognized the disingenuous nature of the request and validated the sale with the following comments:

In the Tenth Circuit, action taken in violation of the automatic stay is void. Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 372-73 (10th Cir.1990). However, the Tenth CFcuit Court of Appeals also recognizes that under some circumstances, retroactive relief is permissible. In re Colder, 907 F.2d 953, 956 (10th Cir.1990). In Colder, the debtor had actively litigated against the creditor, only raising the automatic stay issue when it was to his legal advantage. That court found the debtor’s conduct inequitable and refused to void the litigation.
In this case, the original mistake was made by Centura. Litigation ensued. Although it is not evident at what point in the proceedings the automatic stay became an issue, all parties proceeded to conduct themselves as though the automatic stay was not in effect. The court agrees with the debtor that Centura should not profit by its mistake, and that the status quo in the state court should be maintained. Therefore, the court will annul the automatic stay to validate the foreclosure sale. To hold otherwise would unfairly reward Centura and effectively void the actions taken by Judge Hartman in the Wyoming District Court action.

[¶ 17] Yet another mainstay of equitable relief is that equity will not be invoked if an adequate remedy at law exists. Texaco, Inc. v. State Board of Equalization, 845 P.2d 398, 402 (Wyo.1993); Colorado Interstate Gas Company v. Natural Gas Pipeline Company of America, 842 P.2d 1067, 1072 (Wyo.1992). As one seeking the benefits of equity, Centura must show it had no adequate remedy at law. BHP Petroleum Company, Inc. v. Okie, 836 P.2d 873, 876 (Wyo.1992). Neither the parties nor the district court addressed this issue. However, it is obvious Centura could have pursued purchasing the certificate of purchase from the McNeill Trust or the right of redemption from the bankruptcy trustee and sought re-coupment of any loss ultimately incurred, if any, through an action against its attorneys for then’ alleged negligence in processing and supervising the foreclosure sale. It is somewhat ironic to note this matter could have been much more quickly and inexpensively resolved had Centura taken advantage of the $10,000 offer to sell the certificate of purchase that Mr. McNeill made to Centura’s attorneys on the day of the original sale.

[¶ 18] Even if we were to assume clean hands and no adequate remedy at law, these circumstances still do not warrant setting aside the foreclosure sale. A four-pronged test used by the Minnesota Court of Appeals is useful to evaluate the merits of setting aside a foreclosure sale:

“(1) A blameless plaintiff fallen into serious error ..., which promises a disastrous result, wholly unintended by any of the parties to the transaction ...; (2) absence of negligence of the person seeking relief; (3) defendants with knowledge of the mistake attempting to secure by inequitable conduct an unconscionable advantage of plaintiff and to enrich themselves unjustly at his expense; [and] (4) the ability of the court to restore the status quo as to all of the interests involved.” Peterson v. First Nat’l Bank of Ceylon, 162 Minn. 369, 379, 203 N.W. 53, 56-57 (1925).

Pole v. Trudeau, 516 N.W.2d 217, 221 (Minn.Ct.App.1994).

[¶ 19] In the instant case, Centura, by its own admission, was not a blameless plaintiff, and it is at least questionable whether the ultimate loss, if Centura had purchased the certificate of purchase or redemption rights, would have had a “disastrous effect.” This is especially true since Centura had a potential remedy at law to recoup those funds if, in fact, the mistake was the fault of its attorneys. 'Centura’s negligence also prevents meeting the second prong of the test. The third prong requires the McNeill Trust to have had knowledge of the error and the intent to take unfair advantage. Clearly, this was not the case prior to the actual sale date. Mr. McNeill saw the published foreclosure notice and went to the sale. We decline to infer bad faith from Mr. McNeill’s attendance at the foreclosure sale and recognition of a bidding opportunity where inexplicably no representative for the mortgagee appeared at the sale.

[¶ 20] The fourth and final prong of the test requires the court to ascertain whether it is actually feasible to return the parties to them presale status. In another Minnesota case, TCF Banking & Savings, F.A. v. Loft Homes, Inc., 439 N.W.2d 735, 739 (Minn.Ct.App.1989), the Minnesota Court of Appeals provided factors “critical in determining whether a return to the status quo can be achieved: first, reliance to a party’s detriment upon the foreclosure, and second, any subsequently acquired rights of a third party.” As to the first factor, it is reasonable to infer the McNeill Trust relied on the sale to its detriment by paying U.S. Bank for an assignment of the second mortgage to protect its interest in the property from redemption. Centura characterizes the McNeill Trust’s actions as unreasonable given knowledge of its competing claims. However the McNeill Trust was entitled to rely upon the sanctity and finality of the foreclosure process and to protect the interest it purchased in compliance with the statutory procedures. While the district court ordered that the McNeill Trust’s sale funds be re-toned and attorney fees and costs be paid, it denied recoupment of the payment made for the second mortgage assignment. The McNeill Trust could not have been made completely whole without affecting the subsequently acquired rights of a third party, U.S. Bank. Therefore, we conclude the parties cannot be substantially returned to their presale status. Harkening back to the Man-ion case where our discussion began, we note this appeal presents no indication of fraud or other irregularity that, in conjunction with an inadequate sale price, would be sufficient to support setting aside the foreclosure sale. Consequently, we find, as a matter- of law, the district court’s decision to do so should be reversed.

[¶21] We must specifically address, although the district court did not, the remaining three reasons Centura claims the sale should be deemed invalid and set aside— namely, Centura did not attend the sale or notice U.S. Bank, the McNeill Trust did not tender a check immediately upon the acceptance of the bid, and the McNeill Trust was unjustly enriched.

[¶ 22] We can identify no legal requirement that the mortgagee either attend the sale or provide notice of the sale to a second mortgagee. The “Acceleration; Remedies” clause of the instant mortgage provides in relevant part:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.... If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by applicable law....
If Lender invokes the power of sale, Lender shall give notice of intent to foreclose to Borrower and to the person in possession of the Property, if different, in accordance with applicable law. Lender shall give notice of the sale to Borrower.... Lender shall publish the notice of sale, and the Property shall be sold in the manner prescribed by applicable law. Lender or its designee may purchase the Property at any sale.

This language does not require that the mortgagee/lender bid or even be present at the foreclosure sale. In fact, the instrument states the mortgageeAender may purchase the property at the sale; therefore, it is reasonable to conclude the mortgageeAender’s participation is wholly discretionary.

[¶ 23] Our “applicable law” governing foreclosure by power of sale is found in §§ 34-4-101 through 34-4-113. The statutes expressly indicate the foreclosure and sale may be accomplished in accordance with either the terms of the mortgage or the statutes themselves. Section 34^4-101. The act augments, rather than limits, the remedies available in mortgage default circumstances. This is relevant because, similar to the mortgage terms, the statutory provisions permit, but do not compel, the mortgageeAender to attend and/or bid at the foreclosure sale. Section 34-4-108. We find no indication in either the mortgage or the statutes that a foreclosure sale is invalid if the mortgagee/lender does not attend the sale.

[¶ 24] The mortgage language at issue in this case requires that notice of the alleged default and scheduled foreclosure sale be given in a prescribed manner to the mortgagor/borrower and anyone currently in possession of the property, if it is a different person. Publication of the notice of foreclosure sale is also required. However, no requirement exists to notify other lienholders. Certainly, a foreclosure sale held without notice to other lienholders would not resolve all outstanding encumbrances. ‘When a junior lienholder is not made a party to a foreclosure, the junior interest is not bound by the foreclosure decree, and the lienholder is entitled to exercise his rights as if the foreclosure had never taken place.” Patel v. Khan, 970 P.2d 836, 839 (Wyo.1998). However, it does not follow that failure to give notice would cause the sale to be invalid. “Equity will not set aside a sale merely on the ground that the property was encumbered with other mortgage and judgment liens, at least if there appears to be no controversy as to the amount and priority of such liens.” 59A C.J.S. Mortgages § 679 at 182 (1998). Similarly, the statutory prerequisites to foreclosure in § 34-4-103 do not require notification to other lienholders.

[¶ 25] Centura also alleges the payment by the McNeill Trust was irregular because of a brief delay while the proper payee was determined and Mr. McNeill went to the bank to obtain a certified check. This argument might have some merit had Centu-ra’s attorneys taken this opportunity to explain to the sheriffs office, when it called to ascertain the proper payee, that the sale was held in error. However, this did not occur, and, essentially, the check was delivered to the sheriff contemporaneously. Centura cannot demonstrate prejudice from the brief delay and actually participated to the extent it took no corrective action though contact was made regarding the form of the payment check. “Where the terms of sale provide for payment forthwith of the money bid, the bidder may be allowed a reasonable time to produce the amount of his bid.” 59A C.J.S. Mortgages, supra, § 864 at 436. Centura attempts to place technicalities of form over substance to undo the damage flowing from its own errors and/or those of its representatives.

[¶ 26] We now consider whether the McNeill Trust has been unjustly enriched. “The burden of proving the elements of unjust enrichment is on the party seeking that remedy.” Boyce v. Freeman, 2002 WY 20, ¶ 9, 39 P.3d 1062, ¶ 9 (Wyo.2002). The elements that must be established are:

“(1) Valuable services were rendered, or materials furnished,
“(2) to the party to be charged,
“(3) which services or materials were accepted, used and enjoyed by the party, and,
“(4) under such circumstances which reasonably notified the party to be charged that the plaintiff, in rendering such services or furnishing such materials, expected to be paid by the party to be charged. Without such payment, the party would be unjustly enriched.”

Id. at ¶ 12, 39 P.3d 1062, ¶ 12 (quoting Coones v. Federal Deposit Insurance Corporation, 894 P.2d 613, 617 (Wyo.1995)). “[U]njust enrichment claims visualize a situation where a party receives something of value without payment, which was accepted and used so as to unjustly enrich the recipient of the goods or services.” Metz Beverage Company v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 36, 39 P.3d 1051, ¶ 36 (Wyo.2002). The circumstances of this ease fail to prove the fourth element of unjust enrichment— “reasonably notified the party to be charged that the plaintiff, in rendering such services or furnishing such materials, expected to be paid” more than the amount bid.

[¶ 27] The McNeill Trust made its $20,000 bid at what was advertised to be a competitive foreclosure sale arranged by Centura and its representatives. Under these circumstances, we cannot find the McNeill Trust was on notice that, if it was successful in obtaining the subject property by competitive bid for a price less than the outstanding mortgage balance, Centura would expect payment for the difference. This suggestion is wholly inconsistent with the normal and reasonable understanding and expectation of a competitive bid sale. The only thing the McNeill Trust should reasonably have been on notice of was that the highest bid would purchase the property. The McNeill Trust did not lose rights or receive heightened responsibilities solely because the price it paid was substantially less than the debt.

[¶28] We are not persuaded, pursuant to the particular facts of this case, that this bid should be considered unconscionable, grossly inadequate, or the root of unjust enrichment. As we noted in Manion:

[N]ot only did Manion have the right to go to the foreclosure sale and purchase the property to protect his investment, Wyoming law also provides a right of redemption following a foreclosure sale. This right is available to both the person whose real property has been sold as well as a mortgagee such as Manion. Wyo. Stat. Ann. §§ 1-18-103 and -104 (LexisNexis 2001). Generally, “where the right of redemption is not cut off by the sale, the courts are more reluctant to set it aside for inadequacy of price than where the sale bars the right altogether.” 59A C.J.S. Mortgages § 680.

2002 WY 49, ¶ 8, 43 P.3d 576, ¶ 8. “There is no requirement that foreclosed property be sold for its appraised value, which may or may not reflect the price that could be obtained upon sale of the property.” World Savings and Loan Association v. Amerus Bank, 317 Ill.App.3d 772, 251 Ill.Dec. 385, 740 N.E.2d 466, 474 (2000). “ ‘[F]air market value’ presumes market conditions that, by definition, simply do not obtain in the context of a forced sale.” BFP v. Resolution Trust Corporation, 511 U.S. 531, 538, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994); see also Krohn v. Sweetheart Properties, Ltd., 203 Ariz. 205, 52 P.3d 774, 780 (2002).

[¶ 29] Some jurisdictions have adopted arbitrary percentages of fair market value as their benchmark of unconscionability and which could be utilized to support an unjust enrichment claim. For example, New Mexico identifies sale prices of ten percent to forty percent of value as inadequate and sufficient to justify setting aside a sale when combined with other inequitable circumstances. Crown Life Insurance Company v. Candlewood, Ltd., 112 N.M. 633, 818 P.2d 411, 415 n. 2 (1991); Armstrong v. Csurilla, 112 N.M. 579, 817 P.2d 1221, 1235 (1991). Delaware uses a fifty percent fair market value test, and it is suggested in the comment to § 8.3 of Restatement (Third) of Property: Mortgages that less than twenty percent of fail* market value is widely accepted as “grossly inadequate.” Burge v. Fidelity Bond arid Mortgage Company, 648 A.2d 414, 419 (Del.1994); Restatement (Third) of Property: Mortgages, supra, § 8.3 cmt. b at 584. We will not substitute arbitrary limitations for thorough examination of the facts and equities of each case to determine uncon-scionability or unjust enrichment.

[¶ 30] Pursuant to our analysis, we conclude the district court erred in granting summary judgment to Centura and endeavoring to return the parties to their presale status. We reverse the grant of summary judgment to Centura and remand for entry of summary judgment on the McNeill Trust’s motion and dismissal of all other claims and defenses.

B. Attorney Fees

[¶ 31] As an integral part of the exercise of equitable discretion, and in an effort to restore the presale status quo, the district court ordered Centura to pay the McNeill Trust’s attorney fees and costs in excess of $80,000. Centura disputed this award as part of its objection to the district court’s ruling setting aside the foreclosure sale.

[¶ 32] We recently reviewed the standards for award of attorney fees reiterating that Wyoming subscribes to the American rule. Alexander v. Meduna, 2002 WY 83, ¶ 49, 47 P.3d 206, ¶49 (Wyo.2002); Schlesinger v. Woodcock, 2001 WY 120, ¶ 21, 35 P.3d 1232, 121 (Wyo.2001); Cline v. Rocky Mountain, Inc., 998 P.2d 946, 949 (Wyo.2000).

Under the American rule, each party is generally responsible for his own attorney fees. However, a prevailing party may be reimbursed for his attorney fees when express statutory or contractual authorization exists for such an award. Moreover, an exception may be applied in the circumstances of fraud and the corollary award of punitive damages. See Olds v. Hosford, 354 P.2d 947, 950 (Wyo.1960) (recognizing an exception to the general rule denying recovery of attorney fees and costs in a replevin action where “fraud, malice, oppression or wil[l]ful wrong” can be shown).

Alexander, 2002 WY 83, ¶49, 47 P.3d 206, ¶49 (some citations omitted). The district court’s award of attorney fees was not based on a statute or contract, nor did it include a finding of fraud, malice, or willful wrongdoing. Instead, it was an aspect of the court’s exercise of equitable discretion and attempted restoration of the parties to their presale status, which action we have reversed. Therefore, we reverse the award of attorney fees to the McNeill Trust and hold all parties responsible for their own fees and costs of litigation consistent with the American rule.

[¶ 33] Reversed and remanded to the district court for issuance of an order consistent with this opinion.

      . The lawsuit was apparently filed without Cen-tura's knowledge or authorization. However, Centura subsequently ratified its attorneys’ actions.

      . Mr. Dvorscak never responded in the suit, and Mrs. Dvorscak participated in a very limited manner in the district and bankruptcy court forums. She did not file a notice of appeal.

      .The McNeill Trust purchased U.S. Bank’s second mortgage. Like Mr. Dvorscak, U.S. Bank did not participate in the litigation below or file an appeal.

      . These are referred to as the Romkey factors pursuant to Romkey v. Saumweber, 170 Minn. 438, 212 N.W. 816 (1927).

      .
      (a) To entitle any party to give a notice as hereinafter prescribed and to make such foreclosure, it is requisite:
      (i) That some default in a condition of such mortgage has occurred by which the power to sell became operative;
      (ii) That no suit or proceeding has been instituted at law to recover the debt then remaining secured by such mortgage, or any part thereof, or if any suit or proceeding has been instituted, that the same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied in whole or in part; and
      (iii) That the mortgage containing the power of sale has been duly recorded; and if it has been assigned, that all assignments have been recorded; and
      (iv) That written notice of intent to foreclose the mortgage by advertisement and sale has been served upon the record owner, and the person in possession of the mortgaged premises if different than the record owner, by certified mail with return receipt, mailed to the last known address of the record owner and the person in possession at least ten (10) days before commencement of publication of notice of sale. Proof of compliance with this subsection shall be by affidavit.


author: FABE, Chief Justice.

text:
    Tammi L. EDELMAN, Appellant, v. Duane F. EDELMAN, Appellee.
    No. S-10408.
    Supreme Court of Alaska.
    Dec. 27, 2002.

      Michael Hough, Homer, for Appellant.
    Allison E. Mendel, Mendel & Associates, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I.INTRODUCTION

This appeal concerns the manner in which property was divided in a divorce proceeding and the denial of attorney’s fees and costs to the former wife. Tammi Edelman challenges the trial court’s refusal to compel Duane Edelman, her former spouse, to assign half of his claims from the Exxon Valdez oil spill so that the Exxon funds administrator can pay her directly. Instead of assigning half of Duane’s Exxon claims to Tammi, the superi- or court decided to retain jurisdiction until it could determine the value of the Exxon claims. Tammi also disputes the trial court’s denial of attorney’s fees and costs to her. Because the trial court did not abuse its discretion in retaining jurisdiction over the Exxon claims and requiring the parties to bear their own fees, we affirm the superior court’s decision.

II. FACTS

Duane and Tammi Edelman married in 1976. Their only child, J.E., was born in 1983. The couple separated in October 1992 and Tammi filed for divorce in June 1993. The superior court granted Tammi a decree of divorce on April 14,1994.

Duane is a seasonal fisherman and a claimant in the Exxon Valdez Oil Spill litigation. He holds two types of claims against Exxon. The first is for income lost from the Cook Inlet salmon set net fishery and from hauling Prince William Sound herring. The second is for devaluation of his salmon set net permit. The superior court awarded the lost income claims equally to Tammi and Duane.

Duane and Tammi petitioned for bankruptcy in March 1994, after they had filed for divorce but before the superior court granted the final divorce decree. Originally filed under Chapter 13, the Edelmans’ bankruptcy petition was converted to Chapter 7 on October 24,"1994. Ultimately, the parties appear to have changed the bankruptcy from joint to individual, as Duane received a discharge in his name alone on February 9, 1995. Tammi did not pursue bankruptcy for herself.

III. PROCEDURAL HISTORY

This is the second time that this case has come before us. In Edelman v. Edelman (Edelman I), we addressed the division of the marital property, alimony, and attorney’s fees. With regard to the marital property, we held that (1) the set net salmon fishing permit was Duane’s separate property; (2) the superior court’s valuation of the marital residence was clearly erroneous; (3) compensatory damages from Duane’s Exxon Valdez claims which replaced lost fishing income during marriage should be classified as marital property, to be divided equally between Tammi and Duane; (4) compensatory damages from Duane’s Exxon Valdez claims for devaluation of his set net permit should be classified as Duane’s separate property; (5) the superior court erroneously awarded Duane his entire pension fund without accounting for Tammi’s share of the marital portion; and (6) Tammi was not entitled to reorientation alimony. We remanded to the superior court for revaluation of the marital residence, determination of whether Tammi was entitled to credit for post-separation payments she made on the marital residence’s mortgage, and determination of the value of Duane’s pension fund. We also remanded on the issue of attorney’s fees which we said “must be based primarily on the relative economic situations and earning power of the parties.”

On remand, the trial court affirmed its original award of the marital home to Tammi and adjusted the appraisal value of the home to $165,000. The equity in the home at the time of court’s order was $73,588.22. The trial court held that Tammi was not entitled to credit for post-separation mortgage payments. The court awarded the pension plan to Duane. The trial court also provided that “[a]ny recovery for lost income from Exxon should be divided equally between the parties.”

Shortly after the trial court issued its memorandum decision and order on remand, Tammi filed a motion for attorney’s fees and costs. She argued that Duane’s greater earning capacity and comparative job security, combined with his alleged vexatious conduct in delaying the divorce proceedings, compelled an award in her favor for fees and costs. Duane argued in his opposition to Tammi’s motion that Tammi could pay her own fees and that he had not engaged in vexatious conduct.

In addition- to her motion for attorney’s fees and costs, Tammi requested that Duane sign two Exxon assignments. The assignments authorized the Exxon Qualified Fund Administrator to pay the assigned amount to Tammi directly. Duane refused to sign the assignments, claiming the documents did not comport with the trial court’s decision. Tammi moved to compel Duane to execute the assignments.

The trial court denied both of Tammi’s motions in its October II, 2001 supplementary order on remand. On the attorney’s fees and costs issue, the trial court held that Tammi could pay her own fees and that Duane had not engaged in vexatious conduct. With regard to the proposed assignments of the Exxon awards, the trial court decided to retain jurisdiction over the division of the Exxon claims “to monitor distribution of that asset, if and when it occurs.” The court noted that the amounts may be subject to third-party claims, such as that of the bankruptcy trustee, and concluded that the assignments were not necessary; rather, “some document providing notice of the existence of Plaintiffs interest to the fund administrator should be all that is necessary.”

Tammi appeals the denial of attorney’s fees and the denial of the motion to compel Duane to sign the assignments.

IY. STANDARD OF REVIEW

We review procedural decisions of the superior court under the abuse of discretion standard. We will only reverse a trial court’s decision not to award attorney’s fees if it was an abuse of discretion.

V. DISCUSSION

A. The Exxon Claims

Tammi argues that the trial court abused its discretion in refusing to require Duane to execute the assignments of the Exxon awards. Her primary argument is that the trial court modified her original award of half of the Exxon lost income claims “to something significantly less” by deciding to retain jurisdiction. She argues that the bankruptcy trustee’s claims against Duane may be deducted from the Exxon awards before the awards are distributed equally to Tammi and Duane, thus diminishing her share.

The only potential merit in Tammi’s argument that the trial court’s supplementary order on remand modified her award of fifty percent of the Exxon lost income claims “to something significantly less” comes from a perceived discrepancy between what we said in Edelman I and the trial court’s language in its supplementary order. Following our decision in Edelman I, the superior court stated in its decision'on remand that “[a]ny recovery for lost income from Exxon should be divided equally between the parties.” However, the superior court later stated in its supplementary order on remand that “[a]ny Exxon damages arising out of Mr. Edelman’s Cook Inlet Set Net permit belong[ ] to Defendant since that set net permit is his separate property.” But in Edelman I, we held that the set net damages reflecting the loss of marital wages are marital property. This apparent discrepancy is not fatal because the set net claim is comprised of two types of damages: “(1) compensatory damages for loss of revenue in 1989-91 due to the drop in price of sockeye salmon, and (2) damages for devaluation of his set net permit.” We interpret the trial court’s supplementary order to reflect our determination that only the damages for devaluation of the set net permit go exclusively to Duane as separate property. Tammi’s share of the Exxon lost income claims continues to be fifty percent.

The superior court did not abuse its discretion by retaining jurisdiction over the Exxon claims. Both parties concede that the exact amount and time of payout of the Exxon claims are unknown. We have held that when an asset is incapable of valuation at the time of trial because of future contingencies, the trial court should retain jurisdiction over its division until valuation is possible. Duane is in bankruptcy; Tammi chose not to pursue bankruptcy. Some of Duane’s debts may be marital debts. Presumably, the bankruptcy trustee will not have a claim to Tammi’s share of marital property to pay debts that are solely Duane’s; however, that issue is for the bankruptcy court to determine. We affirm the trial court’s decision to retain jurisdiction over the awards and not to compel Duane to assign Tammi’s fifty percent share of the Exxon claims to her.

B. Attorney’s Fees and Costs

Tammi’s second claim on appeal is that the trial court abused its discretion in denying her attorney’s fees. She asked the court to award her $47,732.00 in attorney’s fees and $5,209.68 in costs. The trial court denied Tammi any attorney’s fees. She argues two

points on appeal: that the trial court failed to base its decision on the relative economic situations and earning powers of the parties as directed by this court in Edelman I and that Duane engaged in vexatious conduct. Duane counters that income disparity alone is not a basis for an award of attorney’s fees and points out that, as the trial court noted, Tammi received over $45,000 in spousal support, sixty percent of the marital estate, and that she has already remarried and had additional children. He also asserts that Tammi’s lack of income is due to her lifestyle choice to stay home with her children.

The decision to award attorney’s fees is within the trial court’s broad discretion. The trial court may award a divorcing spouse “attorney fees and costs that reasonably approximate the actual fees and costs required to prosecute or defend the action.” The purpose of awarding attorney’s fees in divorce proceedings is to “assure that both spouses have the proper means to litigate the divorce action on a fairly equal plane.” The court must base its decision whether to award fees primarily on the parties’ relative economic situations and earning powers. However, parties who are in comparable economic situations should bear their own fees and costs. Thus, even if one spouse earns less than the other, if that spouse has resources sufficient “for the superior court to reasonably expect [him or her] to pay [his or her] own fees, it is not an abuse of discretion to require [the lower wage earning spouse] to do so.”

The lower court determined that it did not “need to determine what [Tammi’s] actual income earning capacity might be” because it found that Tammi “has the resources to pay her own attorney’s fees and she was not compromised from litigating on an equal plane with [Duane] as a result of any disparity in income earning capacity.” Tammi argues that the trial court thus failed to follow our specific direction to base its decision about attorney’s fees on remand upon “the relative economic situations and earning powers of the parties.” We disagree. “Partial attorney’s fees are awarded as a matter of course under Civil Rule 82 to the prevailing party. Civil Rule 82, however, does not apply to judgments in divorce cases. In such cases costs and fees are based on the ‘relative economic situations and earning powers’ of the parties, rather than on a prevailing party determination.” In essence, we instructed the lower court to apply the divorce exception to Alaska Civil Rule 82. The divorce exception provides that “when the parties’ economic status is generally equal, it is ordinarily error to make any award of costs or fees.” Tammi’s resources included: $45,000 in interim support from Duane, the marital home, and the potential for additional recovery from her fifty percent share of the Exxon claims. The equity in the marital home at the time of the trial court’s decision was $73,588.22. The superior court awarded Duane the marital portion of his retirement/pension fund valued at $45,000 and fifty percent of the Exxon lost income claims. Duane is in bankruptcy. Because Duane’s economic situation is not significantly better than Tammi’s, we hold that the trial did not abuse its discretion when it denied Tammi attorney’s fees.

The trial court may also increase an award of attorney’s fees where a party has acted in bad faith or vexatiously. The court must follow a two-step process to make an award of enhanced fees: It must determine the appropriate fee award under the general rule and then it may increase that award to account for a party’s misconduct. “Failure to follow this two-step process is an abuse of discretion.” Additionally, the court “must make explicit findings of bad faith or vexatious conduct and clearly explain its reasons for deviating from the general rule.” “When the court finds that one spouse’s misconduct has unnecessarily increased the other spouse’s costs, the court must identify the nature and amount of these increased costs.”

Tammi argues that the trial court abused its discretion when it stated that “[i]t would be difficult and time consuming for this court to attempt reconstruction of the events by examination of the five volumes of pleadings in this case” to determine whether Duane acted vexatiously. The superior court did not err in declining to find that Duane engaged in bad faith or vexatious conduct. A review of the record shows that Tammi made only generalized allegations in her motions for attorney’s fees that Duane delayed the divorce proceedings and that his alleged delay tactics rose to the level of bad faith and vexatious conduct. The party who seeks an increased award of attorney’s fees must show that the other party’s vexatious or bad faith conduct prevented him or her from litigating on an equal plane. Tammi has not demonstrated with sufficient specificity that Duane’s actions were vexatious or in bad faith. The superior court therefore did not err in finding that Duane did not act in bad faith or engage in vexatious conduct.

VI. CONCLUSION

Because the trial court did not abuse its discretion in retaining jurisdiction over the Exxon claims and requiring the parties to bear their own fees, we AFFIRM the superi- or court’s decision.

      . Edelman v. Edelman, 3 P.3d 348, 350 (Alaska 2000).

      . Id. at 350.

      . Because the set net fishing permit is Duane’s separate property, we ruled that the permit devaluation claim is also his separate property. Edelman, 3 P.3d at 355. Permit devaluation accounts for seventeen percent of Duane’s Upper Cook Inlet salmon set net claim. Therefore, Duane will receive seventeen percent of the Cook Inlet set net claim as separate property in the event that the claims are paid. The remaining proceeds will represent lost marital income and will be divided equally between Duane and Tammi.

      . Edelman, 3 P.3d at 352-58.

      . Id. at 354, 356.

      . Id. at 359.

      . The court arrived at this amount by subtracting the amount of the first and second mortgages on the home at the time of Duane and Tammi’s separation, $74,026.61 and $9,750.00, and the amount of an IRS lien, $7,635.17, from the appraisal value of the marital home at the time of trial, $165,000.

      .The proposed Assignments of Proceeds read in pertinent part: .
      I, DUANE F. EDELMAN ... irrevocably assign! ] ONE-HALF (1/2) all of my claims, settlement or proceeds from the Exxon Valdez Oil Spill Litigation Tender Exxon Claim to TAMMI BLUMENTRITT fik/a TAMMI EDELMAN.... I direct the Exxon Qualified Settlement Fund administrator ... to pay the assigned sum to the assignee....
      And
      I, DUANE F. EDELMAN ... irrevocably assign! ] ONE-HALF (1/2) all of my claims, settlement or proceeds from the Exxon Valdez Oil Spill Litigation Upper Cook Inlet Salmon Set Netters' Exxon Claim, except compensation for Devaluation of Limited Entry Permit, to TAMMI BLUMENTRITT fik/a TAMMI EDELMAN.... I direct the Exxon Qualified Settlement Fund administrator ... to pay the assigned sum to the assignee....

      . Nelson-Lizardi v. Lizardi, 49 P.3d 236, 238 (Alaska 2002).

      . Davila v. Davila, 908 P.2d 1027, 1031 (Alaska 1995).

      . Edelman I, 3 P.3d at 355.

      . Id.

      . Id.

      . Root v. Root, 851 P.2d 67, 68 (Alaska 1993).

      . Nicholson v. Wolfe, 974 P.2d 417, 427 (Alaska 1999).

      . AS 25.24.140(a)(1).

      . Nicholson, 974 P.2d at 427 (quoting Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)).

      . Edelman I, 3 P.3d at 359.

      . Nicholson, 974 P.2d at 427.

      . Davila v. Davila, 908 P.2d 1027, 1035 (Alaska 1995).

      . Edelman I, 3 P.3d at 359.

      . L.L.M. v. PM., 754 P.2d 262, 263-64 (Alaska 1988).

      . "The divorce judgment exception to Civil Rule 82 is based on a broad reading of AS 25.24.140(a)(1), Burrell v. Burrell, 537 P.2d 1, 6 (Alaska 1975), and on the reality that there usually is no prevailing party in a divorce case.” Id. at 264.

        .Id.

      . Kowalski v. Kowalski, 806 P.2d 1368, 1373 (Alaska 1991).

      . Id.

      . Id.

      . Id.

      . Id.

      . The Edelmans' case was originally assigned to Superior Court Judge Charles K. Cranston. Upon his retirement, the case was assigned to Superior Court Judge Harold M. Brown who explained in his supplementary order:
      [T]his court has no independent recollection of the conduct of either party prior to its appointment to the bench. It would be difficult and time consuming for this court to attempt reconstruction of the events by examination of the five volumes of pleadings in this case.... [T]he conduct of the parties [since the case was assigned to Judge Brown] does not independently justify an award of [increased] attorney’s fees.

        .Gallant v. Gallant, 945 P.2d 795, 803 (Alaska 1997); see also Wright v. Wright, 904 P.2d 403, 411 (Alaska 1995) (affirming award of enhanced fees where former husband concealed $1,337,136 in marital assets and wife spent $125,000 in attorney's and accountant's fees to track them down).