Houghton v. DoH

2008 UT 86
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Paul Houghton and Billie No. 20070197
Henderson, individually and
each as representative of a
class; and Damian Henderson,
Wayne Rubens, Ron Roes, and
Susan Roes, who are other
members of these classes,
similarly situated,
Plaintiffs and Appellants,
v.
Department of Health; The
Office of Recovery Services;
The Department of Human Services;
The State of Utah; Rod L. Betit,
Director of the Department of
Health and Director of Department
of Human Services; Emma Chacone,
Executive Director of the Office
of Recovery Services; and John F I L E D
Does 1-50 and Jane Does 1-50,
Defendants and Appellees. December 16, 2008
---
Third District, Salt Lake
The Honorable Anthony B. Quinn
No. 950907491
Attorneys: Robert B. Sykes, Alyson E. Carter, Salt Lake City,
for appellants
Mark L. Shurtleff, Att’y Gen., Philip S. Lott, Peggy
E. Stone, Debra J. Moore, Asst. Att’ys Gen., Salt
Lake City, for appellees
---
PARRISH, Justice:

1 2000 UT 39, 999 P.2d 572.
2 See Houghton v. Dep’t of Health (Houghton III), 2005 UT
63, 125 P.3d 860; Houghton v. Dep’t of Health (Houghton II), 2002
UT 101, 57 P.3d 1067; Houghton v. Dep’t of Health (Houghton I),
962 P.2d 58 (Utah 1998).
3 Utah Code Ann. §§ 26-19-1 to -18 (1989) (current version
at id. §§ 26-19-1 to -19 (2007)).
4 Id. § 26-19-5(1)(b).
No. 20070197 2
INTRODUCTION
¶1 This interlocutory appeal presents two issues. The
first concerns the timeliness of the petition for interlocutory
review. We hold that the petition was timely. The second
concerns the district court’s decertification of a class of
plaintiffs suing the State to recover attorney fees pursuant to
State v. McCoy.1 We hold that the district court erroneously
interpreted the law when it concluded that no common issues of
fact predominated because calculating reasonable attorney fees
involved a fact-intensive inquiry. In the context of a McCoy
claim, reasonable attorney fees are calculated according to the
plaintiff’s attorney fee agreement, subject to the statutorily
mandated thirty-three percent cap.
BACKGROUND
¶2 This is the fourth time this case has arrived at our
court on an interlocutory appeal during its thirteen years of
litigation,2 and the parties have yet to finish discovery.
Because we have set out the facts in our prior opinions, we will
limit our factual recitation to what is necessary to provide
context and to address the issues in this interlocutory appeal.
¶3 The Medicaid Benefits Recovery Act3 authorizes the
State to place a priority lien on settlements or awards received
by Medicaid recipients from third parties.4 This provides a
means for the State to reimburse itself for medical services
provided to the recipient when the recipient later receives
compensation from a third party. In State v. McCoy, we held that
if the State satisfies its lien from an award or settlement
obtained through the efforts of a private attorney, “the State

5 2000 UT 39, ¶ 18, 999 P.2d 572.
6 Id. ¶ 19.
7 Houghton III, 2005 UT 63, ¶¶ 37, 48.
8 Id. ¶ 49.
9 Id. ¶ 50.
3 No. 20070197
must pay the attorney fees incurred in procuring the State’s
share of the settlement proceeds.”5
¶4 The plaintiffs in this case are Medicaid recipients who
obtained recoveries through the efforts of private attorneys and
later had those recoveries reduced by the State’s priority lien.
The plaintiffs are seeking reimbursement from the State for
“reasonable attorney fees”6 under McCoy (“McCoy claims”).
¶5 In our most recent interlocutory review of this case,
we clarified that McCoy was not limited to its facts.7 We held
that the State must pay its “proportionate share of attorney
fees” in “all cases where the State satisfie[d] its lien” through
a recovery obtained by a private attorney and where the attorney
requested consent from the State pursuant to Utah Code section
26-19-7(1)(a).8 We then remanded the case to the district
court.9
¶6 On remand, the district court first considered a motion
to decertify filed by the State before the Houghton III
interlocutory appeal. Finding “no common issue that would
justify the case continuing as a class action,” the district
court ordered limited discovery on fifty claims and additional
briefing on whether the class should be decertified. On December
22, 2006, the district court issued an order decertifying the
class (the “Decertification Order”). The district court
concluded that no common issues of fact predominated because the
plaintiffs could only prevail under McCoy by proving that the
State did not pay reasonable attorney fees and the reasonableness
of the attorney fees paid by the State was a fact-specific
inquiry based on the totality of the circumstances. For cases in
which the plaintiffs alleged that the State underpaid attorney
fees, the district court concluded that issues of waiver,
estoppel, or accord also precluded class certification.
¶7 Recognizing that its decision to decertify the class
would impact other pending motions, the district court requested
additional briefs from the parties addressing the impact of the
Decertification Order. On January 9, 2007, the plaintiffs sent

No. 20070197 4
the district judge a letter expressing uncertainty regarding the
correct time to appeal, in response to which the district court
issued a minute entry on January 12, 2007, indicating that the
Decertification Order was “provisional.” On January 23, 2007,
the parties argued the remaining motions to the district court.
Following oral argument, the district court directed the State’s
counsel to prepare the court’s order on the motions. The
district court signed the prepared order on February 15, 2007.
The new order did not substantively change or modify the December
22 order other than stating that it was now “final.” The
plaintiffs filed a petition for interlocutory review on March 7,
2007.
¶8 We provisionally granted permission for this
interlocutory appeal on May 29, 2007. Our grant of review was
limited to two questions:
1. Whether this Court has jurisdiction,
pursuant to rule 5 of the Rules of Appellate
Procedure, to review the December 22, 2006
“order on motion for decertification”, in
light of the district court’s subsequent
minute entry, dated January 12, 2007,
designating the December 22 order
“provisional”, and its February 15, 2007
order designating the December 22 order as
“final” without making any modifications to
it.
2. If so, whether the district court’s
December 22, 2006 decision and order
decertifying the class was erroneous.
¶9 We have jurisdiction to hear interlocutory appeals
pursuant to Utah Code section 78A-3-102(3)(j) (Supp. 2008).
ANALYSIS
I. WE HAVE JURISDICTION TO HEAR THIS INTERLOCUTORY APPEAL
BECAUSE THE PLAINTIFFS APPEALED WITHIN TWENTY DAYS OF THE DATE
THAT THE COURT’S ORDER WAS SUBMITTED AND SIGNED IN COMPLIANCE
WITH RULE 7(f)(2)
¶10 The State argues that we do not have jurisdiction over
this appeal because the petition for interlocutory review was
untimely. Specifically, the State argues that the
Decertification Order constituted the entry of an order under
rule 58A(c) of the Utah Rules of Civil Procedure and that the
opportunity to file for interlocutory review expired twenty days

10 Utah R. App. P. 5(a) (“An appeal from an interlocutory
order may be sought . . . within 20 days after the entry of the
order of the trial court . . . .”).
11 Utah R. Civ. P. 58A(c) (“A judgment is complete and shall
be deemed entered for all purposes . . . when the same is signed
and filed . . . .” (emphasis added)).
12 Id. at 7(f)(1).
13 Id. at 7(f)(2).
14 2007 UT 43, ¶ 9, 162 P.3d 1097.
15 Id.
16 Id. ¶ 6 n.1.
17 Id. ¶ 5.
5 No. 20070197
after December 22, 2006, the date when the Decertification Order
was issued.10
¶11 The State’s argument fails because rule 58A(c)
addresses the entry of a judgment, not the entry of an order.11
Rule 7(f) governs court orders. “An order includes every
direction of the court, including a minute order entered in
writing, not included in a judgment.”12 Unlike judgments, orders
are not automatically final. According to the plain language of
rule 7(f)(2), following the entry of an order, “the prevailing
party shall, within fifteen days after the court’s decision,
serve upon the other parties a proposed order in conformity with
the court’s decision.”13 In Code v. Utah Department of Health,
we addressed when the time for appeal from a final order begins
to run.14 We held that “no finality will be ascribed to a
memorandum decision or minute entry for purposes of triggering
the running of the time for appeal” until the prevailing party
prepares and submits a proposed order, unless the court
explicitly directs that no order needs to be submitted.15
Moreover, “if the court does not explicitly direct that there is
no need to submit an order and the prevailing party fails to
submit an order, the appeal rights of the nonprevailing party
will extend indefinitely.”16 Although Code addressed an appeal
from a final order, not an interlocutory appeal, the same rule
applies for ascribing finality to an interlocutory decision. To
hold otherwise would require the parties to “engage in a guessing
game to divine the court’s intentions,”17 as happened in this
case. According to the plain language of rule 7(f)(2), unless
the court specifically directs otherwise, the prevailing party

18 Id. ¶ 6.
19 Id. ¶ 6. n.1.
20 Tyler v. Dep’t of Human Servs., 874 P.2d 119, 120 (Utah
1994).
21 Manwill v. Oyler, 361 P.2d 177, 178 (Utah 1961).
No. 20070197 6
must submit an order to the court before the time for appeal will
begin running.18
¶12 In this case, the Decertification Order was a
memorandum decision that Judge Quinn did not intend to be final
for the purposes of interlocutory appeal. It was not a judgment.
Judge Quinn did not request the State to prepare an order, nor
did he explicitly state that no order was required. Furthermore,
the memorandum decision itself contemplated further action by
requesting additional briefing from the parties regarding the
remaining motions. The minute entry on January 12, 2007, in
response to the plaintiffs’ confusion regarding the time for
appeal, further clarified Judge Quinn’s intent by stating that
the Decertification Order was “not intended as a final order”
because the additional motions before the court “may result in
modification of the Order.” Furthermore, following oral argument
on the remaining issues, Judge Quinn directed the State to submit
an order, and the final order explicitly stated that “the
December 22, 2006 Order was not intended to be a final order
until after consideration of the additional motions addressed
herein.” If the State intended that the time for an
interlocutory appeal begin to run on December 22, the State
should have submitted an order in compliance with rule 7(f)(2).
Otherwise, as we noted in Code, “the appeal rights of the
nonprevailing party will extend indefinitely.”19
¶13 Because the plaintiffs submitted their petition within
twenty days of February 15, 2007, the date that Judge Quinn
signed the order prepared and submitted by the State, the
plaintiffs’ petition for interlocutory review is timely.
¶14 Having concluded that the petition is timely, we turn
to the merits. The decision to grant a petition for
interlocutory appeal is discretionary.20 “The purpose . . . [of]
an interlocutory appeal is to get directly at and dispose of the
issues as quickly as possible consistent with thoroughness and
efficiency in the administration of justice.”21 We will grant
interlocutory review “if it appears essential to adjudicate
principles of law or procedure in advance as a necessary

22 Id.; see also Utah R. App. P. 5(e) (“An appeal from an
interlocutory order may be granted only if it appears that the
order involves substantial rights and may materially affect the
final decision . . . .”).
23 2005 UT 63, 125 P.3d 860.
24 Manwill, 361 P.2d at 178.
25 Id.
26 Richardson v. Ariz. Fuels Corp., 614 P.2d 636, 639 (Utah
1980).
27 Houghton III, 2005 UT 63, ¶ 32, 125 P.3d 860 (citation
omitted).
7 No. 20070197
foundation upon which the trial may proceed; or if there is a
high likelihood that the litigation can be finally disposed of on
such an appeal.”22 In this case, the district court’s decision
to decertify the class is intimately related to its
interpretation of the elements of a McCoy claim as articulated in
Houghton III.23 Proper interpretation of Houghton III is “a
necessary foundation upon which the trial may proceed.”24
Accordingly, accepting interlocutory review promotes “the desired
objective of efficiency in procedure.”25 Thus, we exercise our
discretion to review the Decertification Order pursuant to rule 5
of the Utah Rules of Appellate Procedure.
II. THE DISTRICT COURT’S DECERTIFICATION ORDER WAS BASED ON AN
ERRONEOUS INTERPRETATION OF McCOY AND HOUGHTON III
¶15 The decision to allow a case to proceed as a class
action is “within the sound discretion of the district court.”26
In this case, however, the district court decertified the class
based on an interpretation of the law. “Interpreting case law
presents a question of law. Accordingly, we review the district
court’s interpretation of our ruling in McCoy [and Houghton III]
for correctness.”27
A. The District Court’s Conclusion That Calculating “Reasonable”
Attorney Fees Required a Fact-Specific Inquiry Was Erroneous
¶16 In the Decertification Order, the district court
properly laid out the elements for establishing a prima facie
case under McCoy. The plaintiffs must demonstrate the following:
(1) the Plaintiff was represented by counsel
in a third party liability claim, (2) the

28 See, e.g., Houghton III, 2005 UT 63, ¶¶ 39, 49.
No. 20070197 8
Plaintiff requested consent from the State to
represent the State’s Medicaid claim, (3) the
State satisfied its Medicaid lien from
proceeds recovered through the efforts of the
Plaintiff, and (4) the State did not pay the
reasonable attorney fees it was obligated to
pay the Plaintiff.
¶17 The district court erred in interpreting the fourth
element, which requires proof that the State did not pay the
reasonable attorney fees it owed to the plaintiffs. The district
court held that reasonable attorney fees could only be calculated
within the context of the State’s assumed authority to negotiate
attorney fees with the attorney when (and if) it granted consent.
Thus, the court concluded that in order to determine whether the
fees paid by the State were reasonable, the court must place
itself in the shoes of the State at the time that the recipient’s
attorney requested consent. The test created by the district
court was a totality of the circumstances test that would take
into account the fee arrangement between the recipient and his
counsel and the case status at the time consent was requested.
Under the second factor, the court would consider a multitude of
factors that the court assumed the State would consider if it
were engaging in fee negotiations:
If the recipient requests consent near the
beginning of the case when the status is the
same as when the fee percentage was set, the
percentage of attorney fees owed by the State
would likely be the same. However, if the
recipient requests consent after
investigations have been completed and the
merits of the case are more clear, the
State’s attorney fees may be lower if in fact
the risk of non recovery is less. For
example, as was often the case, if the
recipient requested consent from the State
after the recipient received an acceptable
settlement offer from the third party, the
State’s attorney fees would be less because
there was little risk of not recovering.
(footnotes omitted).
This approach ignores the plain language of our earlier cases,
which hold that the State must pay its “proportionate share”28 or

29 See, e.g., id. ¶¶ 40-42, 44, 49.
30 See, e.g., McCoy, 2000 UT 39, ¶ 18, 999 P.2d 572.
31 Id. (emphasis added).
32 Black’s Law Dictionary 782 (8th ed. 2004).
33 2004 UT 88, ¶ 11, 108 P.3d 690 (emphasis added).
34 See Laub v. S. Cent. Utah Tel. Ass’n, 657 P.2d 1304, 1308
(Utah 1982).
35 Id.
9 No. 20070197
its “fair share”29 of attorney fees “incurred in procuring”30 the
State’s share of the proceeds.
¶18 In McCoy, we held that “the State must pay the attorney
fees incurred in procuring the State’s share of the settlement
proceeds.”31 According to Black’s Law Dictionary, the word incur
means “[t]o suffer or bring on oneself (a liability or
expense).”32 Thus, the plain language of McCoy indicates that
the State’s obligation to pay attorney fees should be calculated
according to the fees that the recipient suffered or brought on
herself. In other words, they should be calculated according to
the attorney fee agreement between the recipient and her
attorney. We have phrased the rule similarly in other cases that
reference McCoy’s holding. For example, in State v. Streight, we
summarized McCoy as holding “that the State was obligated to pay
the recipient’s attorney fees.”33
¶19 We have also referred to the State’s obligation to pay
“its proportionate share of attorney fees” and a “fair share of
attorney fees.” These are the same terms used in our subrogation
case law, which imposed an equitable requirement for parties to
pay their “fair share” of attorney fees when exercising a right
of subrogation. Before Utah passed the Utah Automobile No-Fault
Insurance Act in 1973, the standard practice was for the insurer
to compensate the insured for economic losses after an accident.
Then, if the insured obtained recovery from a third party, the
insurer would seek reimbursement from the insured’s third-party
recovery.34 Although this practice became virtually obsolete in
Utah with the passage of the No-Fault Insurance Act,35 it
provides a useful analogy for the case before us because the
State’s lien for recovering Medicaid funds mimics the right of
subrogation.

36 Street v. Farmers Ins. Exch., 609 P.2d 1343, 1346 (Utah
1980) (emphasis added).
37 Guar. Nat’l Ins. Co. v. Morris, 611 P.2d 725, 727 (Utah
1980) (emphasis added); see also Laub, 657 P.2d at 1308 (“Because
the reimbursement fund was procured by the insured, the insurer
typically contributed a fair share of the costs and attorney’s
fees incurred in obtaining the fund.” (emphasis added)).
38 Street, 609 P.2d at 1346.
39 See, e.g., Commercial Standard Ins. Co. of Fort Worth,
Tex. v. Combs, 460 S.W.2d 770, 775 (Ark. 1970) (holding that
insurance company must pay its share of the forty percent
contractual fee agreement between the insured and his attorneys);
Wash. Fire & Marine Ins. Co. v. Hammett, 377 S.W.2d 811, 813
(Ark. 1964) (“The [insurance company’s] real grievance lies in
having to pay a fee to an attorney not of its own choice. . . .
But when the insurance company has benefitted from the work done
by the insured’s attorney there is no inequity in requiring it to
bear its fair share of the collection expense.”); United Servs.
Auto. Ass’n v. Hills, 109 N.W.2d 174, 177 (Neb. 1961) (“The
applicable rule is that where the holder of the subrogation right
. . . acquiesces in the plaintiff’s action, but accepts the
avails of the litigation, he should be subjected to his
proportionate share of the expenses thereof, including attorney’s
fees.”).
40 See, e.g., Combs, 460 S.W.2d at 775 (concluding that the
insured’s attorneys were “entitled to their contractual fee out
of the total amount of the recovery,” which was forty percent);
Hammett, 377 S.W.2d at 813 (looking to attorney fee agreement to
impose a forty percent fee, absent contention that the fee was
(continued...)
No. 20070197 10
¶20 In subrogation cases,“[t]he general rule [was] that a
subrogated insurance carrier must pay its fair share of
attorney’s fees and costs if it . . . [did] nothing to assist in
the prosecution of the claim.”36 Thus, we required the insurer
to pay the “fair share of an attorney’s fee and costs which [had]
been incurred in protecting its interests.”37 This requirement
derived from the principle that “[e]quity and good conscience
require that [the insurer] should not have a free ride from the
plaintiff’s efforts.”38 The same approach was taken by courts in
various states.39 Because these cases do not discuss the
calculation of a “fair share” of fees, it appears that this
language meant that the attorney fees were calculated according
to the attorney fee agreement between the attorney and the
insured.40

40 (...continued)
unreasonably high).
41 2000 UT 39, ¶¶ 19-20.
42 See Utah Code Ann. § 26-19-7(4) (1989) (“The department
may not pay more than 33% of its total recovery for attorney’s
fees, but shall pay its proportionate share of the cost of any
action in compliance with this section.”).
11 No. 20070197
¶21 Contrary to the district court’s conclusion, the term
“reasonable attorney fees,”41 as used toward the end of the McCoy
opinion, does not impose an additional fact-specific inquiry in
order to calculate reasonable fees. Instead, the term
“reasonable” refers to the statutorily mandated ceiling on
attorney fees set out in Utah Code section 26-19-7(4).42 Thus,
under McCoy, even if the plaintiff agreed to a forty percent
contingency fee, the State’s obligation is limited to the
reasonable thirty-three percent ceiling articulated in the
statute.
¶22 Because we hold that McCoy requires the State to pay
the same percentage of fees that the recipient paid, subject to
the thirty-three percent ceiling, determining the amount of money
owed by the State in each case should be a simple mathematical
calculation. This is so even in the cases where the State
allegedly underpaid the recipients because in those cases the
plaintiffs need only show a difference between the percentage
that they paid their attorney and the percentage that the State
paid for its recovery. Thus, on remand, we do not anticipate the
same fact intensive inquiry that convinced the district court
that class certification was inappropriate.
B. The District Court Erred in Concluding That Issues of Waiver,
Estoppel, or Accord Precluded Class Certification in Cases Where
the Attorneys Entered into Retainer Agreements with the State
¶23 The district court found an additional problem with
certifying the group of plaintiffs represented by attorneys who
had entered into retainer agreements with the State. Because the
retainer agreements expressly set out the fee that the State
would pay, the district court concluded that “[i]n every case
where the State paid an attorney fee or discounted its lien,
there will be issues involving estoppel, waiver, or accord.” We
believe that our prior cases address this issue. Most
importantly, in Houghton I, we recognized that the representation

43 962 P.2d 58, 63 (Utah 1998).
44 Id. at 60.
45 2000 UT 39, ¶ 18.
46 Id.
47 2005 UT 63, ¶ 49 (emphasis added).
No. 20070197 12
agreements signed by the attorneys were “merely pro forma.”43
They were not bargained for agreements. “Notwithstanding the
language implying a voluntary contractual relationship . . . [the
attorneys] were legally obligated under section 26-19-7(3) to
sign agreements if they wished to represent Medicaid recipients
in actions against third parties.”44
¶24 Furthermore, in McCoy we reasoned that the statutory
provision regarding attorney fees provided no basis for limiting
fees to recipients to whom the State, in its discretion, granted
consent.45 We reasoned that it would be “inherently unfair” not
to award fees to an attorney who had complied with the statutory
requirements but had the bad luck not to receive consent from the
State.46 The same reasoning applies in this case. The practical
result of the district court’s approach would mean that all
attorneys to whom the State granted consent would be limited to
the fee negotiated by the State, but all attorneys to whom the
State denied consent would receive the statutorily mandated
thirty-three percent. It would be inherently unfair if the
attorneys to whom the State granted consent could only recover
attorney fees at the rate dictated by the State in a pro forma,
unbargained-for fee agreement, while attorneys to whom the State
denied consent could obtain the full percentage of their attorney
fees. Moreover, in Houghton III, when we articulated the State’s
obligation to pay proportionate attorney fees, we did not
distinguish between cases where the State refused consent and
those in which it granted consent. In contrast, we stated that
the State had an obligation to pay proportionate attorney fees
“in all cases where the State satisfie[d] its lien from the
proceeds procured through the efforts of a private attorney.”47
¶25 An amendment to Utah Code section 26-19-7, adopted in
2005 to clarify the State’s obligation to pay attorney fees,
further supports our holding that the State’s proportionate share
of attorney fees is to be calculated pursuant to the same rate
paid by the plaintiffs to their attorneys. The amended version
reads:

48 Utah Code Ann. § 26-19-7(2)(c)(ii) (2007).
49 Medicaid Benefits Recovery Act Amendments: Hearing on
S.B. 126 Before the H. Health & Human Servs. Comm., 56th Utah
Leg., (Jan. 27, 2005) (Audio Recording) (statement of Emma
Chacon). Ms. Chacon made a similar comment before the House
Health and Human Services Committee. When explaining that the
amendment changes the ceiling on attorney fees to a fixed rate,
she said, “There were already provisions in the statute, but it
was somewhat unclear, so we’re just trying to bring more clarity
to that.” Medicaid Benefits Recovery Act Amendments: Hearing on
S.B. 126 Before the H. Health & Human Servs. Comm., 56th Utah
Leg., (Feb. 11, 2005) (Audio Recording) (statement of Emma
Chacon).
50 Medicaid Benefits Recovery Act Amendments: Hearing on
S.B. 126 Before the S. Health & Human Servs. Comm., 56th Utah
Leg. (Jan. 27, 2005) (Audio Recording) (statement of Emma
Chacon).
13 No. 20070197
If the recipient’s attorney enters into a
written collection agreement with the
department, or includes the department’s
claim in the recipient’s claim or action
pursuant to Subsection (4) [i.e., the
department fails to respond to the consent
request], the department shall pay attorney’s
fees at the rate of 33.3% of the department’s
total recovery and shall pay a proportionate
share of the litigation expenses directly
related to the action.48
Under the amended statute, the State’s obligation to pay attorney
fees is always the same as long as the attorney complied with the
statutory requirements. According to the Office of Recovery
Services itself, this amendment merely clarifies what the law has
always been. On January 27, 2005, before the Senate Health and
Human Services Committee, Emma Chacon, director of the Office of
Recovery Services, explained that the amendment “doesn’t change
any of the underlying legal concepts that have been in State law
since . . . the 1980s.”49 She further explained, “What this bill
really does . . . is carve out the protocol and the procedures
that the recipient, their legal counsel, and the State will
follow to work together on this issue to make sure we’re in
compliance with the law.”50

No. 20070197 14
¶26 To summarize, we hold that the State’s proportionate
share of attorney fees is based on the percentage rate paid by
the plaintiffs to their attorneys, subject to the thirty-three
percent ceiling. Because the district court erroneously applied
the standard we announced in Houghton III and McCoy, we remand
with instructions to reconsider the order decertifying the class
in light of the standard we clarified today.
III. WE DO NOT ADDRESS THE TWO ADDITIONAL “RELATED QUESTIONS”
BECAUSE THEY ARE BEYOND THE SCOPE OF OUR INTERLOCUTORY REVIEW
¶27 The plaintiffs also ask us to address two additional
legal issues. First, they ask us to articulate the appropriate
class criteria under Houghton III. We believe that this issue
has been addressed in the above holding, which clarifies the
requirements for establishing a McCoy cause of action. Second,
they ask us to address whether they are entitled to full
discovery on remand. We did not grant interlocutory review on
this issue, so we decline to address it.
CONCLUSION
¶28 The petition for interlocutory review was timely
because it was submitted within twenty days of an order prepared
by the State at the request of the court in compliance with rule
(7)(f)(2) of the Utah Rules of Civil Procedure. Under McCoy and
Houghton III, the State is obligated to pay its proportionate
share of fees incurred in procuring the State’s recovery. This
means that the State must pay attorney fees according to the rate
in the attorney fee agreement between the plaintiff and the
private attorney, subject to the reasonable statutory cap of
thirty-three percent. This is true regardless of whether the
State denied or granted consent. Because the Decertification
Order entered by the district court was premised upon an
erroneous view of the law, we vacate it and remand this matter to
the district court for further proceedings consistent with this
opinion.
---
¶29 Chief Justice Durham, Associate Chief Justice Durrant,
and Judge Greenwood concur in Justice Parrish’s opinion.
¶30 Having disqualified himself, Justice Nehring does not
participate here; Court of Appeals Judge Pamela T. Greenwood sat.
---
WILKINS, Justice, dissenting:

15 No. 20070197
¶31 I respectfully dissent. Notwithstanding the
clarification of how the district court is to apply the McCoy
mandate of this court, the determination of attorney fees payable
to each of the plaintiffs is an individual and fact intensive
question for the district court. Even with the clear mandate of
my colleagues as to how much the State is required to pay and to
disregard any written agreement between the parties on the
presumption that it must surely provide for more than the
statutorily capped amount, I believe the district court was well
within its discretionary boundaries to decertify the overall
class action for purposes of calculating the individual attorney
fee awards due each plaintiff given the different claims and
factors at issue in each individual case. I would affirm the
district court’s decision, and remand for the calculations
mandated by McCoy.
---