536.087. Reasonable fees and expenses awarded prevailing party in civil action or agency proceeding--application, content, filed with court or agency where party appeared--appeal by state, effect--pow

Reasonable fees and expenses awarded prevailing party in civil actionor agency proceeding--application, content, filed with court oragency where party appeared--appeal by state, effect--power ofcourt or agency to reduce requested amount or deny, when--form ofaward--judicial review, when.

536.087. 1. A party who prevails in an agency proceeding orcivil action arising therefrom, brought by or against the state,shall be awarded those reasonable fees and expenses incurred bythat party in the civil action or agency proceeding, unless thecourt or agency finds that the position of the state wassubstantially justified or that special circumstances make anaward unjust.

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

3. A party seeking an award of fees and other expensesshall, within thirty days of a final disposition in an agencyproceeding or final judgment in a civil action, submit to thecourt, agency or commission which rendered the final dispositionor judgment an application which shows that the party is aprevailing party and is eligible to receive an award under thissection, and the amount sought, including an itemized statementfrom any attorney or expert witness representing or appearing inbehalf of the party stating the actual time expended and the rateat which fees and other expenses are computed. The party shallalso allege that the position of the state was not substantiallyjustified. The fact that the state has lost the agencyproceeding or civil action creates no legal presumption that itsposition was not substantially justified. Whether or not theposition of the state was substantially justified shall bedetermined on the basis of the record (including the record withrespect to the action or failure to act by an agency upon which acivil action is based) which is made in the agency proceeding orcivil action for which fees and other expenses are sought, and onthe basis of the record of any hearing the court or agency deemsappropriate to determine whether an award of reasonable fees andexpenses should be made, provided that any such hearing shall belimited to consideration of matters which affected the agency'sdecision leading to the position at issue in the fee application.

4. A prevailing party in an agency proceeding shall submitan application for fees and expenses to the administrative bodybefore which the party prevailed. A prevailing party in a civilaction on appeal from an agency proceeding shall submit anapplication for fees and expenses to the court. The filing of anapplication shall not stay the time for appealing the merits of acase. When the state appeals the underlying merits of anadversary proceeding, no decision on the application for fees andother expenses in connection with that adversary proceeding shallbe made under this section until a final and unreviewabledecision is rendered by the court on the appeal or until theunderlying merits of the case have been finally determinedpursuant to the appeal.

5. The court or agency may either reduce the amount to beawarded or deny any award, to the extent that the prevailingparty during the course of the proceedings engaged in conductwhich unduly and unreasonably protracted the final resolution ofthe matter in controversy.

6. The decision of a court or an agency on the applicationfor reasonable fees and expenses shall be in writing, separatefrom the judgment or order of the court or the administrativedecision which determined the prevailing party, and shall includewritten findings and conclusions and the reason or basistherefor. The decision of a court or an agency on theapplication for fees and other expenses shall be final, subjectrespectively to appeal or judicial review.

7. If a party or the state is dissatisfied with adetermination of fees and other expenses made in an agencyproceeding, that party or the state may within thirty days afterthe determination is made, seek judicial review of thatdetermination from the court having jurisdiction to review themerits of the underlying decision of the agency adversaryproceeding. If a party or the state is dissatisfied with adetermination of fees and other expenses made in a civil actionarising from an agency proceeding, that party or the state may,within the time permitted by law, appeal that order or judgmentto the appellate court having jurisdiction to review the meritsof that order or judgment. The reviewing or appellate court'sdetermination on any judicial review or appeal heard under thissubsection shall be based solely on the record made before theagency or court below. The court may modify, reverse or reverseand remand the determination of fees and other expenses if thecourt finds that the award or failure to make an award of feesand other expenses, or the calculation of the amount of theaward, was arbitrary and capricious, was unreasonable, wasunsupported by competent and substantial evidence, or was madecontrary to law or in excess of the court's or agency'sjurisdiction. Awards made pursuant to this act* shall be payablefrom amounts appropriated therefor. The state agency againstwhich the award was made shall request an appropriation to paythe award.

(L. 1989 H.B. 143 § 5)

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

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

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