Jones, Waldo v. Cade ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 15 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JONES, WALDO, HOLBROOK &
MCDONOUGH, a Utah Professional
Law Corporation,
Plaintiff-Appellee,
DANIEL L. BARTLEY, an individual;
SHARON L. GREEN, an individual;
KRUSE, LANDA & MAYCOCK, a
Utah Professional Law Corporation;
COHNE, RAPPAPORT & SEGAL,
P.C., a Utah Professional Law
Corporation; THE KINNAMON
GROUP, a Utah corporation; UNITED
STATES OF AMERICA,
Defendants-Appellees,
Nos. 02-4248 & 03-4168
v. (D.C. No. 2:01-CV-933-PGC)
(D. Utah)
DAVID G. CADE, an individual,
Defendant-Appellant,
and
JEFFREY H. HUBBARD,
an individual,
Defendant.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
David G. Cade appeals from the district court’s grant of summary judgment
and disbursement of funds in favor of appellees. Cade argues that the district
court erred by (1) failing to manifest substantial justice in the administration
and disposition of this case; and (2) deciding six motions for summary judgment
in favor of appellees when material questions of fact remained. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM .
I
This case arose as the result of a settlement reached in a prior state court
action commenced by Cade against Zions First National Bank (“Zions Bank”).
Under the terms of the settlement, Cade became entitled to an award of $1.75
million. Cade was represented during the lengthy state litigation by a number of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
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attorneys who claimed that they had not been paid for their legal services. They
accordingly requested that Zions Bank pay them their unpaid fees from Cade’s
settlement proceeds. In addition, the Kinnamon Group claimed that Cade owed it
the balance due on a secured promissory note that Cade had executed in its favor.
Finally, the Internal Revenue Service (“IRS”) asserted that Cade was indebted to
the United States for unpaid federal taxes.
A
The facts giving rise to this case began in December 1988, when Cade
entered into an employment contract with Zions Bank. Cade’s contract specified
the rate of commission he would receive, and at some point, Cade determined he
was not being paid according to the terms of his contract. Cade retained the law
firm of Cohne, Rappaport & Segal (“CRS”) and commenced an action against
Zions Bank in state court in Utah. The state court ordered the parties to
participate in arbitration over the objections of CRS. Cade’s relationship with
CRS deteriorated and CRS recorded a notice of claim with the Salt Lake County
Recorder for an attorney’s lien for unpaid fees. CRS subsequently obtained a
valid judgment and declaration of a valid attorney’s lien against the proceeds of
the Zions Bank litigation for $32,500 plus interest accruing from March 19, 1998.
In August 1993, Mr. Cade hired Daniel L. Bartley and Sharon L. Green to
act as legal counsel. Bartley and Green represented Cade in the Zions Bank
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arbitration before the National Association of Securities Dealers (“NASD”)
as ordered by the court. Cade agreed to pay Bartley and Green forty percent of
any awards received.
In April 1996, Cade was awarded $460,823 from the arbitration. Unhappy
with the award and with Bartley and Green, Cade ended his relationship with
them without paying their fees. Bartley and Green then filed an attorney’s lien
against the proceeds of the Zions Bank litigation, which was recorded with the
Salt Lake County Recorder. On August 6, 1998, a valid judgment for attorney’s
fees and costs totaling $184,329.20 was entered in favor of Bartley and Green in
Nevada. The judgment was domesticated in Utah.
In May 1996, Anthony Rampton, then with the law firm of Fabian &
Clendenin (“F&C”), agreed to represent Cade and appeal the order requiring
NASD arbitration of Cade’s claims. Cade signed a contract with F&C agreeing
to pay them at an hourly rate and to give them fifteen percent of any awards
received over one million dollars. In January 1997, Rampton appealed the
arbitration award. Shortly thereafter, Rampton left F&C to join the law firm of
Kruse, Landa & Maycock (“KLM”). The $61,062.87 of accounts receivable
followed Rampton to KLM. Cade signed another contract for attorney’s fees
with KLM.
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In April 1998, the Utah Court of Appeals granted the motion to vacate the
arbitration award and remanded the matter for trial. Rampton began preparing the
case for trial, but informed Cade that the case required more work than he
originally believed necessary due to its complexity. In December 1998, Rampton
left KLM for the law firm of Jones, Waldo, Holbrook & McDonough (“Jones
Waldo”). Due to the large outstanding balance owed by Cade, Rampton tried
unsuccessfully to find a new attorney.
In September 1999, Rampton wrote to Cade and gave him an accounting of
the $249,158.57 in legal fees and costs that Cade owed Rampton and the prior
firms that had represented Cade. In November 1999, Cade signed a retainer
agreement with Jones Waldo in which he agreed to pay attorney’s fees on an
hourly basis, plus a twenty percent contingency fee for all sums of money
received from the Zions Bank litigation in excess of $500,000. During 1999
and early 2000, discovery continued in the Zions Bank litigation. Ultimately, the
litigation involved over twenty depositions, numerous experts, and thousands of
pages of documents.
In July 2000, Cade acknowledged to Rampton that he had no funds.
Rampton referred him to the Kinnamon Group. Cade took out a loan of $75,000
from the Kinnamon Group and signed a security agreement. The loan was
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secured by the judgment in the Zions Bank litigation. Cade made no payments
on the note.
Also in July 2000, Jones Waldo sent a letter to Cade informing him of
a potential conflict of interest because another attorney at Jones Waldo had
represented Zions Bank on employment law matters unrelated to Cade’s case.
Cade signed a consent to this conflict. This was followed by a letter in September
2000 requesting Cade’s consent to Rampton’s continued representation despite
Jones Waldo’s representation of Zions Bank on other matters. Ultimately, Cade
signed four different consent letters.
In September 2000, Cade’s case against Zions Bank finally went to trial.
A damages expert testified that Cade had suffered damages in a range between
$441,441 and $6,400,000. At the close of trial, Zions Bank moved for a directed
verdict on the attorney’s fees and fraud claims. The court denied the motion on
the attorney’s fees but reserved ruling on the fraud claim until after the jury
verdict.
In October 2000, the jury awarded Cade $441,000 in compensatory
damages and $536,000 in additional damages. Following this verdict,
proceedings were to continue to a punitive damages hearing. Zions Bank
immediately moved for a clarification of the verdict and renewed its motion on
the fraud claims. On the afternoon of the verdict, the parties met to discuss
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a settlement. The parties negotiated through the night and Zions Bank offered to
settle for $1.75 million. Cade authorized the settlement and the attorneys met
with the judge and told him they had settled the case.
Settlement papers were drawn up, but Cade had not finalized the total
amount due on an outstanding IRS lien. The parties continued to negotiate until
February 2001. At that point, the judge ordered the parties to file the settlement
agreement or he would dismiss the case with prejudice. In March 2001, the court
entered a settlement order for $1.75 million. Shortly after the settlement, Cade
stopped working with Rampton and hired Jeffrey Hubbard as his new attorney.
B
In July 2001, Zions Bank filed a motion in state court to interplead the
settlement proceeds in order to determine the respective rights of the claimants,
and to deposit the proceeds in the court’s registry. The court granted the motion
and the $1.75 million was deposited with the court. Subsequently, Jones Waldo
filed the instant separate action in state court and named as defendants all other
parties that it believed had potential competing claims to the fund, namely, Cade;
attorneys Hubbard, 1
Green and Bartley; the law firms of KLM and CRS;
the Kinnamon Group; and the United States. The government removed the case
1
Mr. Hubbard died during the pendency of this action and he was dismissed from
this case by the district court on January 27, 2003.
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to the United States District Court for the District of Utah, and caused the fund
to be transferred to the district court.
In addition to the claims to the settlement proceeds filed by the other
parties, Cade filed counterclaims against Jones Waldo, specifically against
Rampton, alleging breach of fiduciary duty, malpractice and negligence in the
handling of Cade’s litigation with Zions Bank. Cade also counter-claimed against
KLM for the same claims against Rampton while he was working with that firm.
Jones Waldo filed a motion for summary judgment on Cade’s counterclaims and
on its breach of contract claim for unpaid attorney’s fees and costs. KLM also
filed a motion for summary judgment on Cade’s counterclaims and on its claim
for a portion of the settlement proceeds for unpaid attorney’s fees and costs.
Cade filed a written response to Jones Waldo’s motion, but did not file
a response to KLM’s motion. On October 17, 2002, the district court held oral
argument on the motions. On November 13, 2002, the court issued an order
granting partial summary judgment to both firms, holding they had valid claims to
the fund for reasonable attorney’s fees. The order left for the court’s later
determination the amount and priority of their claims, and it set a schedule for
going forward with the disposition of all remaining claims of the parties. The
order also acknowledged that Cade’s counsel had filed a motion to withdraw.
The court granted the motion to withdraw effective December 11, 2002, provided
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that Cade’s counsel filed a responsive brief to the other parties’ motions for
summary judgment.
The remaining parties filed motions for summary judgment on the priority
and amount of their claims, but due to an error in the clerk’s office, Cade’s
counsel did not receive these pleadings. On December 9, 2002, Cade, appearing
pro se, filed a premature notice of appeal of the district court’s November 13th
order. On December 11, 2002, all of the parties with claims to the fund, with the
exception of Cade, submitted an agreed proposal for distribution of the fund,
which proposed to settle the issues of priority and amounts of the claims to be
distributed from the fund. In that proposal, a claim for unpaid attorney’s fees
was added by Rampton, acting on behalf of F&C, in connection with his previous
representation of Cade during the Zions Bank litigation. The court accepted the
proposed settlement offer in lieu of the briefing it had requested in its November
13th order.
On January 9, 2003, Cade’s counsel filed objections to the settlement
agreement. On January 10, 2003, the court held a hearing on the pending motions
in the case. The court granted the motion to withdraw from Cade’s counsel. The
court further ordered Cade to file, either proceeding pro se or with new counsel,
any responses to the pending motions for summary judgment from CRS, Bartley
and Green, the Kinnamon Group, and the IRS by January 31, 2003. In addition,
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Cade was granted the opportunity to file any objections to the reasonableness of
the fees of Jones Waldo and KLM, beyond those raised in his counsel’s objections
to the settlement agreement; however, Cade was ordered to demonstrate good
cause as to why any new arguments he might raise as to the reasonableness of fees
were not raised earlier.
On January 31, 2003, in a pro se response captioned “Affidavit of David
Cade,” Cade set forth his arguments against the summary judgment claims of the
parties. On March 24, 2003, the district court issued an order granting the
motions for summary judgment in favor of Bartley and Green, CRS, the
Kinnamon Group, and the IRS. Because the aggregate of all the parties’ claims
exceeded the $1.75 million of settlement proceeds in the fund, the court accepted
the settlement stipulation and ordered that the fund be distributed in accordance
with the stipulation, thereby leaving Cade with no portion. The court allowed any
interested party to file a brief by April 25, 2003, to demonstrate good cause why
the fund should not be disbursed in accordance with its ruling and the stipulation.
No objections to the disbursement were filed. On April 29, 2003, the court
entered a final order. Cade then filed an amended notice of appeal, which this
court consolidated with Cade’s previously filed premature appeal.
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II
Cade’s first issue on appeal is that the district court failed to manifest
substantial justice in the administration and disposition of this case. It appears as
though Cade is making a general due process argument. To support this apparent
due process argument, Cade makes some minor complaints, but the main
arguments that can be gleaned from the brief are: (1) the district court improperly
removed Cade’s counsel; (2) the district court ignored material issues of fact
when deciding the summary judgment motions; (3) the district court ordered Cade
to file six major pleadings in twenty-one days when he was proceeding pro se;
and (4) the district court erred in determining the reasonableness of the fees.
Cade’s second and fourth arguments speak to the merits of the summary judgment
motions. These arguments are therefore analyzed in the context of the summary
judgment rulings in section III infra .
Cade’s remaining due process arguments focus on the withdrawal of his
attorneys and having to represent himself pro se. Cade characterizes the
withdrawal of his counsel as though the district court acted arbitrarily in
dismissing his attorneys. (Aplt. Br. at 11.) Cade also claims that the allegedly
arbitrary dismissal did not comply with Dist. Utah Civ. R. 83-1.4. These
contentions are erroneous. Cade’s attorneys were not arbitrarily dismissed by the
court; instead, they filed a motion to withdraw their appearance that fully
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complied with Dist. Utah Civ. R. 83-1.4., including a certificate by Cade’s
attorneys that “Cade has been notified in writing of the status of this case,
including the dates and times of any scheduled court proceedings, pending
compliance with any existing court orders, and the possibility of sanctions
therein.” (Aplee. App., Vol. IV at 1314.) To ensure adequate representation for
Cade, the district court required Cade’s attorneys to file an appropriate responsive
brief prior to granting the motion to withdraw unless Cade was able to obtain new
counsel before the response date. Due to a clerk’s error, Cade’s attorneys did not
receive the pleadings filed for most of December; however, the court granted
them an extension to respond until January 9, 2003. After the attorneys filed a
response on Cade’s behalf, the court granted their motion to withdraw. The
district court did not err in granting the motion.
Turning to Cade’s pro se representation, we conclude that Cade was given
sufficient time to respond to all of the pending motions. CRS and Bartley and
Green filed their motion for summary judgment in October 2003. The Kinnamon
Group and the IRS filed their motions for summary judgment in December 2003.
On January 10, 2003, Cade was given extra time, until January 21, 2003 to
respond to all of these motions. Cade never recorded any objections to the
district court’s deadline nor did he file a motion for extension of time. Cade had
the opportunity to obtain new counsel, but he chose instead to proceed pro se.
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After the district court decided the summary judgment motions and the
disbursement of the fund, every party had an opportunity to file objections before
the final order was entered. Cade did not file any objections. Even as a pro se
litigant, Cade was bound to follow the same rules of procedure as litigants
represented by counsel, and the district court was thus not obligated to allow him
any more additional time for filing his responses. See, e.g. , United States v.
Distefano , 279 F.3d 1241, 1245 (10th Cir. 2002); Green v. Dorrell , 969 F.2d 915,
917 (10th Cir. 1992). The district court’s timeline for Cade to file his pro se
responses did not violate his due process rights.
III
Cade challenges the district court’s grant of summary judgment in favor of
all of the appellees. “We review a grant of summary judgment de novo applying
the same standard as the district court.” McKnight v. Kimberly Clark Corp. ,
149 F.3d 1125, 1128 (10th Cir. 1998).
A
The district court determined that CRS had obtained a valid judgment
against Cade for attorney’s fees and costs. Because Cade had the opportunity to
object to the reasonableness of the fees during the prior proceedings, the court
would not reopen this final judgment and granted summary judgment in favor of
CRS. On appeal, Cade’s argument consists of two sentences: “Summary
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judgment in favor of [CRS] was improper because the District Court failed to
apply the substantive law. [CRS] liens are invalid under U.C.A. § 78-51-41. See
Phillips v. Smith , 768 P.2d 449 (Utah 1989).” (Aplt. Br. at 26.)
Cade’s contention that summary judgment was improper is a bald assertion
unsupported by any citation to authority or any explanation as to how the district
court “failed to apply the substantive law.” Id. at 26. Likewise, Cade fails to
offer any reasoning to support his position that the CRS liens are invalid
under Utah Code Ann. § 78-51-41 or how the case he cites is relevant. We
conclude that Cade has waived these arguments because “[a]rguments
inadequately briefed in the opening brief are waived.” Adler v. Wal-Mart Stores,
Inc. , 144 F.3d 664, 679 (10th Cir. 1998) (citations omitted) ; see also Fed. R. Civ.
P. 28(a)(9)(A) (“[Appellant’s] argument . . . must contain . . . appellant’s
contentions and the reasons for them, with citations to the authorities and parts of
the record on which appellant relies.”). 2
Summary judgment in favor of CRS is
therefore appropriate.
2
Cade’s second argument is also waived because he is making this argument for
the first time to this court. “[A]bsent extraordinary circumstances, we do not
consider arguments raised for the first time on appeal.” Hill v. Kan. Gas Serv.
Co. , 323 F.3d 858, 866 (10th Cir. 2003) (quotation omitted). Cade has not
alleged any extraordinary circumstances that would allow us to consider this
argument.
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B
The district court determined that Bartley and Green had obtained a valid
judgment against Cade for attorney’s fees and costs. Because Cade had the
opportunity to object to the reasonableness of the fees during these prior
proceedings, the court would not reopen this final judgment and granted summary
judgment in favor of Bartley and Green. On appeal, Cade contends that there are
material questions of fact as to whether Bartley and Green violated their duty to
him by not protecting him from an erroneous arbitration action, and questions
whether they are entitled to any portion of his settlement funds given their alleged
lack of meaningful contribution to the prosecution of the Zions Bank litigation.
In addition, Cade argues that Bartley and Green’s judgment does not comply with
Utah Code Ann. § 78-51-41.
Bartley and Green assert that Cade’s first argument is barred by res judicata
and that his second argument is barred because he did not raise it before the
district court. Green and Bartley obtained a valid judgment for attorney’s fees
and costs in the amount of $184,329.90 against Cade in the District Court of
Clark County, Nevada. The judgment was entered pursuant to the stipulation of
the parties, and Cade personally signed and consented to the judgment. That
judgment was domesticated in Utah.
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Federal courts are required to give full faith and credit to state judgments.
Reed v. McKune , 298 F.3d 946, 949-50 (10th Cir. 2002). “‘Under res judicata,
a final judgment on the merits precludes the parties . . . from relitigating issues
that were or could have been raised in that action.’” Id. at 950 (quoting Allen v.
McCurry , 449 U.S. 90, 94 (1980)). Utah law controls this court’s determination
of whether to apply the doctrine of res judicata. Id. at 949 (applying Kansas law
to same determination). There are two branches of res judicata: claim preclusion
and issue preclusion. Press Publ’g, Ltd. v. Matol Botanical Int’l, Ltd. , 37 P.3d
1121, 1127-28 (Utah 2001). Bartley and Green argue that both are applicable, but
we need only consider one to determine whether summary judgment on their
claims is appropriate.
For claim preclusion, (1) both cases must involve the same parties; (2) the
claim must be one that was raised or could have been raised in the first action;
and (3) there is a final judgment on the merits. Id. at 1128. Bartley and Green
have established all of these factors. First, the parties are the same in both cases.
Second, the claims now raised by Cade concern the reasonableness of Bartley and
Green’s attorney’s fees; these claims could have and should have been raised in
the action brought by Bartley and Green to collect attorney’s fees that Cade
refused to pay. Lastly, Bartley and Green’s attorney’s fee action resulted in a
final, stipulated judgment on the merits signed by Cade himself. Cade is
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therefore barred from relitigating the issue of the reasonableness of Bartley and
Green’s attorney’s fees in this action.
Cade’s second argument, that Bartley and Green’s judgment does not
comply with Utah Code Ann. § 78-51-41, is waived. As discussed supra with
respect to this same argument asserted against CRS, Cade failed to adequately
brief this argument and he failed to raise it with the district court; this argument is
therefore waived. Adler , 144 F.3d at 679; Hill , 323 F.3d at 866. Summary
judgment in favor of Bartley and Green is appropriate.
C
The district court granted summary judgment in favor of the Kinnamon
Group because there was no dispute that Cade had signed the promissory note in
favor of the Kinnamon Group and that he had failed to pay the note. Cade does
not argue about the merits of the summary judgment determination; instead, he
contends that summary judgment is inappropriate because he was not afforded due
process. His due process argument is based on the following: (1) his attorneys
were dismissed in November and stopped receiving notices and pleadings;
(2) he had no opportunity to participate in the settlement negotiations with the
Kinnamon Group; (3) the district court only gave him twenty-one days to prepare
a response to the Kinnamon Group’s motion for summary judgment in addition to
five other opposition pleadings; and (4) the court placed the further restriction on
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him that he needed to show good cause for any newly filed objections to the
proposed stipulated disbursement of funds.
Cade’s due process argument lacks merit. First, his attorneys were not
dismissed by the court; they filed a motion to withdraw because Cade was not
cooperating with them. While it is true that his attorneys did not receive
pleadings in December even though the court had not officially granted their
motion to withdraw, Cade himself received all pleadings and notices in
December. Further, the court granted an extension for his attorneys to respond to
the proposed settlement due to the clerk’s failure to include them in the mailing
distribution in December. Cade’s lack of participation in the settlement
negotiations does not violate due process. The parties negotiated the proposed
settlement without Cade because they were determining the priority of the
claimants. They were also determining the reduced amount of each party’s claim
to the fund because the aggregate claims exceeded the amount of the fund. Cade
had a full and fair opportunity to oppose the claims made by the parties to the
fund, and he had a full and fair opportunity to oppose the proposed settlement
after it was submitted to the court.
In addition, Cade was given sufficient time to respond to the Kinnamon
Group’s motion. “In general, litigants proceeding pro se are held to the same
procedural standards as those with counsel.” Distefano , 279 F.3d at 1245. Cade
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himself received a copy of all of the pleadings filed in December. On January 10,
2003, the court gave him extra time to respond to all of the motions until January
31, 2003. Cade never recorded any objections to the district court’s deadline, nor
did he file a motion for extension of time. Finally, Cade complains that the
district court restricted him from filing new objections to the proposed stipulated
disbursement of funds unless he could demonstrate good cause. The court placed
this restriction on him because his attorneys had previously filed an objection to
the settlement and “Cade through his counsel had the opportunity to respond to
these issues earlier.” (Aplt. App. at 111.) Cade failed to appeal the merits of his
summary judgment motion, and his due process argument likewise fails.
Accordingly, summary judgment in favor of the Kinnamon Group is appropriate.
D
The district court granted summary judgment in favor of the United States
because the IRS submitted a certified form 4340, which is sufficient evidence that
an assessment was made in accordance with statutory and regulatory mandates.
Cade provided no rebuttal evidence; instead, Cade argued to the district court that
the IRS improperly disclosed information and that the statute of limitations had
run for the IRS to collect on its assessments. The district court disposed of these
arguments, and Cade does not challenge the court’s analysis on appeal. Instead,
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Cade argues that his due process rights were violated because he did not have
“a meaningful opportunity to submit rebuttal evidence.” (Aplt. Br. at 25.)
To support his due process argument, he makes the same allegations he
made with respect to the Kinnamon Group summary judgment: (1) his attorneys
were dismissed in November and stopped receiving notices and pleadings;
(2) he had no opportunity to participate in the settlement negotiations with the
IRS; (3) the district court only gave him twenty-one days to prepare a response to
the IRS’s motion for summary judgment in addition to five other opposition
pleadings; and (4) the court placed the further restriction on him that he needed to
show good cause for any newly filed objections to the proposed stipulated
disbursement of funds. As discussed in section C, supra , these arguments lack
merit. Because there are no material issues of fact in dispute, summary judgment
in favor of the United States is proper.
E
The district court granted summary judgment in favor of KLM because
Cade filed no response to the motion, and because at oral argument, Cade’s
counsel did not contest the motion, stating “[w]e reviewed that and . . . did not
feel like we had defenses that had merit.” (Aplt. App. at 69.) On appeal, Cade’s
argument comprises two sentences:
If treated as claims for fees, the District Court failed to apply the
appropriate reasonableness analysis. (UT R Prof Cond 1.5; UT R J
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ADMIN Rule 6-501). If treated as the collection of state liens, as is
sometimes the case with [KLM], the District Court failed to apply
UCA § 78-51-41. See also Phillips v. Smith , 768 P.2d 449 (Utah
1989).
(Aplt. Br. at 24.)
Cade’s argument is wholly inadequate and fails to offer any explanation as
to how the district court erred. Cade has therefore waived these arguments.
Adler , 144 F.3d at 679; Fed. R. Civ. P. 28(a)(9)(A) . Because Cade has failed to
offer any evidence on appeal that demonstrates material facts in dispute or any
reasoned argument to support his position, summary judgment in favor of KLM is
proper.
F
The district court granted summary judgment in favor of Jones Waldo on
Cade’s counterclaims for breach of fiduciary duty, negligence and malpractice,
and on Jones Waldo’s claim for breach of contract to recover unpaid attorney’s
fees. Cade argued to the district court that Jones Waldo breached its fiduciary
duty to him when it simultaneously represented him and Zions Bank. The district
court found that because Cade had been sufficiently informed of the conflict and
he had consented to the joint representation in four signed letters, Jones Waldo
was entitled to summary judgment. The district court found alternatively that
Cade had failed to establish any damages flowing from the alleged breach of
fiduciary duty.
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With respect to Cade’s malpractice and negligence claim, Cade alleged that
Jones Waldo (through attorney Anthony Rampton) failed to introduce evidence of
all of the commissions he claims he was entitled to receive under his contract
with Zions Bank. The district court found summary judgment was appropriate
because the trial transcript established that Jones Waldo did present this evidence
and there were no material facts in dispute. On Jones Waldo’s breach of contract
claim, the district court noted that Cade had not provided any argument in his
brief on this issue and, at the hearing on the motion, Cade’s counsel argued only
that the attorney’s fees were excessive. The district court granted summary
judgment in favor of Jones Waldo because it found that the right to at least some
of the fees was undisputed and reserved ruling on the reasonableness of the fees
until a later hearing.
After the proposed stipulation for settlement was filed by the appellees,
Cade filed objections to the settlement agreement arguing that the Jones Waldo
fees were unreasonable. On appeal, Cade argues again that the district court
erred in its reasonableness determination. This argument is discussed in Section
IV infra .
On appeal, Cade contends that there are material facts in dispute precluding
summary judgment on Jones Waldo’s breach of contract claim and on Cade’s
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counterclaims. 3
Specifically, Cade argues that a dispute remains whether
Rampton had actual settlement authority to waive the punitive damage hearing
and settle the Zions Bank litigation for $1.75 million. Cade also argues that
whether Rampton’s conduct during the trial was strategy or negligence remains in
dispute. Finally, Cade argues that whether he voluntarily executed the conflict
waivers presented to him, and whether Jones Waldo’s involvement with Zions
Bank was fully disclosed are factual questions still in dispute.
Cade’s first argument regarding Rampton’s settlement authority may not be
considered by this court because it was not presented to the district court. To the
contrary, Cade admitted in his amended response to Jones Waldo’s summary
judgment motion that he authorized the settlement. One of his argument headings
states “Cade’s authorization to settle does not prevent the malpractice case
against Jones Waldo” and the first sentence of that section states “[a]t the time
Cade agreed to settle . . . .” (Aplee. App., Vol. III at 1130.) Because no
extraordinary circumstances exist requiring us to consider this issue, Cade’s
argument is waived. Hill , 323 F.3d at 866.
3
Cade also claims that the district court improperly disbursed funds to Anthony
Rampton personally. This issue was not raised in Cade’s objections to the
settlement agreement, or his affidavit. Cade likewise failed to raise this issue
during the time period for objecting to the district court’s disbursement order.
This issue is therefore waived because there are no extraordinary circumstances
present to justify review. Hill , 323 F.3d at 866.
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Cade’s brief continues to offer undeveloped arguments with his second and
third assertions. Cade states, “[t]he question of whether Rampton’s conduct
during the Zions Bank trial was ‘strategy’ or negligence also remains. (Docket
#8, pp.7-9, #51, pp.12-17, #94, p.16).” (Aplt. Br. at 23.) The first and last record
citations appear to be erroneous because they have nothing to do with Cade’s
assertion. The middle record citation is to the transcript from the hearing on the
oral argument, but this section simply restates Cade’s summary judgment
argument. Similarly, Cade’s conflict of interest argument offers as support
citations to the district court orders ruling against him on summary judgment.
Neither of these citations provide us with record evidence that establishes
material facts in dispute:
To withstand a motion for summary judgment, the nonmovant must
do more than refer to allegations of counsel contained in a brief . . . .
Sufficient evidence (pertinent to the material issue) must be
identified by reference to an affidavit, a deposition transcript, or a
specific exhibit incorporated therein. Without a specific reference,
we will not search the record in an effort to determine whether there
exists dormant evidence which might require submission of the case
to a jury.
Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1546 (10th Cir. 1995) (internal
quotations and citations omitted). Accordingly, we cannot consider these
unsubstantiated allegations in reviewing Cade’s appeal. Id. Summary judgment
in favor of Jones Waldo is therefore appropriate.
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IV
Cade argues that the district court erred in determining the reasonableness
of attorney’s fees awarded to Jones Waldo. A district court’s ruling regarding the
reasonableness of attorney’s fees is reviewed for abuse of discretion, with great
weight given to the district court’s assessment of reasonableness. Brown v. Gray ,
227 F.3d 1278, 1297 (10th Cir. 2000).
Jones Waldo met its initial burden of establishing the reasonableness of its
fees by submitting monthly billing statements for 1999 to 2001. See Sheets v.
Salt Lake County , 45 F.3d 1383, 1391 (10th Cir. 1995). Cade’s counsel, prior to
withdrawing, filed objections to the settlement agreement that included Cade’s
arguments regarding the reasonableness of Jones Waldo’s fees. The district court
considered these arguments and it addressed them in its disbursement order.
First, Cade argued that $86,000 in trial preparation costs was excessive.
The court found that considering the complexity of the case, the number of
witnesses, and the substantial documentation, these costs were reasonable. Cade
also argued that it appeared as though he was being overbilled because there were
four different attorneys working on his case, as well as paralegals and other staff.
The court found that Jones Waldo, in the course of its representation of Cade,
successfully settled a case against GE Capital, and handled a complex commercial
litigation jury trial, including settlement negotiations; it found, moreover, that
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these legal actions justified the time spent by Rampton and the other attorneys.
Cade also challenged Rampton’s hourly rate, but the court found that Cade had
repeatedly signed agreements that included Rampton’s billing rates and that these
rates were well within the local rates for an attorney of his experience and
reputation. Finally, Cade argued that other costs such as secretarial fees,
electronic legal research and business dinners were excessive. The court found
that these costs were minimal and were likely eliminated by the reductions taken
by Jones Waldo for the proposed settlement agreement.
On appeal, Cade argues for the first time that the district court erred by not
considering Rampton’s movement among three different firms during his
representation of Cade and the fact that Cade had to sign four separate retainer
agreements. Cade had three opportunities to bring this issue to the district
court’s attention and he failed to do so. He presents no extraordinary
circumstances that would justify our review of this issue; therefore, this argument
is waived. Hill , 323 F.3d at 866. In addition, Cade argues that “the District
Court failed to apply the appropriate reasonableness analysis. (UT R Prof Cond
1.5; UT RJ ADMIN Rule 6-501).” (Aplt. Br. at 24.) Like many of Cade’s
arguments in his brief, he has utterly failed to adequately address this issue and
explain the reasoning that supports his contention. This argument is likewise
waived. See Adler , 144 F.3d at 679; Fed. R. Civ. P. 28(a)(9)(A) . The district
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court did not abuse its discretion in its determination of the reasonableness of
Jones Waldo’s attorney’s fees.
The judgment of the district court is AFFIRMED .
Entered for the Court
Carlos F. Lucero
Circuit Judge
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