Boyle v. Clyde Snow & Sessions PC , 424 P.3d 1098 ( 2018 )

2018 UT App 69THE UTAH COURT OF APPEALS
THOMAS D. BOYLE,
Appellant,
v.
CLYDE SNOW & SESSIONS PC,
Appellee.
Opinion
No. 20140820-CA
Filed April 19, 2018
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 090400630
Thomas D. Boyle, Appellant Pro Se
Jeffery S. Williams, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 This case is before us on remand from the Utah Supreme
Court. See generally Boyle v. Clyde Snow & Sessions PC (Boyle II),
2017 UT 57, rev’g Boyle v. Clyde Snow & Sessions PC (Boyle I), 2016
UT App 114, 378 P.3d 98. Our supreme court reversed this
court’s determination in Boyle I that the district court did not
have jurisdiction to award attorney fees to Clyde Snow
& Sessions PC (Clyde Snow), concluding that Thomas D. Boyle
had “waived any objection to procedural deficiencies in Clyde
Snow’s intervention.” Id. ¶¶ 3–4. On remand, we are instructed
to address Boyle’s remaining contentions. Id. ¶ 22.
¶2 Boyle contends the district court erred in awarding
attorney fees to Clyde Snow because: (1) Clyde Snow failed to
perfect its attorney’s lien under Utah Code section 38-2-7; (2) the
court failed to “recognize and properly consider Mr. Boyle’s
Boyle v. Clyde Snow & Sessions
valid assignment of contract rights from Prince Yeates
& Geldzaher, PC” (Prince Yeates); and (3) the court denied Boyle
his due process rights because he did not have a “full and fair
opportunity to be heard.” Boyle has failed to develop a
“reasoned analysis supported by citations to legal authority and
the record” and has therefore failed to meet his burden of
persuasion on appeal. Utah R. App. P. 24(a)(8); see Bank of
America v. Adamson, 2017 UT 2, ¶¶ 12–13, 391 P.3d 196. We
therefore affirm the district court’s award of attorney fees to
Clyde Snow and remand for the sole purpose of dismissing the
ancillary fee dispute with prejudice.
BACKGROUND 1
¶3 This case began in June 2007 when a plaintiff (Plaintiff)
retained Clyde Snow on a contingency fee basis to represent her
in her son’s wrongful death action. Clyde Snow’s contingency
fee agreement (the CFA) with Plaintiff secured a forty-percent
interest, through an attorney’s lien, “of any Recovery achieved
either by negotiated compromise or settlement prior to or after
the filing of a Complaint.” The CFA also provided, “In the event
of a Recovery after [Clyde Snow] has been discharged, [Clyde
Snow] shall be compensated for the reasonable value of [Clyde
Snow’s] services.”
¶4 Clyde Snow assigned Boyle, who was then an attorney
with the firm, to litigate the case. In 2010, after about three years
of litigation, Boyle joined Prince Yeates and “[Plaintiff] elected to
have [her] claim follow Boyle.” Boyle v. Clyde Snow & Sessions PC
(Boyle II), 2017 UT 57, ¶ 5. In July 2010, Clyde Snow sent a letter
1. Because we dismiss this case for failure to marshal the record
evidence and to develop a reasoned analysis with citations to
relevant legal authority or the record, we recite only the record
facts pertinent to our analysis with respect to the issues
remanded to us by our supreme court.
20140820-CA 2 2018 UT App 69Boyle v. Clyde Snow & Sessions
to Plaintiff and Boyle demanding a minimum payment for its
services in the event of a recovery. A few days later, Clyde Snow
filed a notice of attorney’s lien, asserting its interest in Plaintiff’s
recovery for the value of the services it had rendered.
¶5 In May 2013, the parties to the wrongful death action
settled the claim and moved to dismiss the case with prejudice
the following month. In late June, before the court made a
decision related to the motion to dismiss, Clyde Snow filed a
restated notice of attorney’s lien and an objection to the
dismissal of the wrongful death action, arguing that the issue of
the attorney’s lien had not been resolved. The district court
dismissed the wrongful death claims with prejudice but ordered
the case to “remain open . . . for the sole and limited purpose of
deciding [Clyde Snow’s] attorney’s lien.”
¶6 The court ordered Clyde Snow and Prince Yeates to file
position statements and mediate the attorney’s lien issue. In its
position statement, Prince Yeates explained that it need not be
involved, because the dispute regarding attorney fees was
between Clyde Snow, Boyle, and another attorney involved in
the case. 2 Clyde Snow argued that the underlying case
originated with Clyde Snow through the CFA and that it was
entitled to receive reasonable value for the services it had
provided. The parties attempted to mediate but were
unsuccessful.
¶7 In January 2014, after notifying the court that mediation
was unsuccessful, Prince Yeates filed a motion to interplead
funds Clyde Snow could recover if the court determined Clyde
Snow had established entitlement to them. Prince Yeates
disclaimed any interest it might have had in the interpleaded
funds and assigned “any such interest to Mr. Boyle” and the
other attorney. The district court granted Prince Yeates’s motion
and Clyde Snow filed a complaint, asserting its entitlement to
2. The other attorney is not a party to this appeal.
20140820-CA 3 2018 UT App 69Boyle v. Clyde Snow & Sessions
the interpleaded settlement funds. Boyle answered the
complaint, arguing that Clyde Snow should not receive any of
the funds, because it had mismanaged the case, and he asserted
several counterclaims. Boyle also moved to dismiss Clyde
Snow’s complaint, alleging that Clyde Snow failed to properly
intervene, and he alternatively filed a motion for summary
judgment. The court denied Boyle’s motions—concluding the
claims in his motion for summary judgment were previously
addressed in earlier pleadings and “beyond the scope of this
interpleader action”—and conducted an evidentiary hearing on
the attorney’s lien issue in July 2014.
¶8 At the evidentiary hearing, Clyde Snow called five
witnesses, including an expert witness who testified to the
method used by Clyde Snow to determine the amount of fees to
which it was entitled and to opine on the reasonableness of the
amount of its attorney fees demand. Boyle recalled one of Clyde
Snow’s witnesses for additional testimony and was himself
cross-examined by Clyde Snow’s attorney during his defense. At
the close of the hearing, the court ruled in favor of Clyde Snow
and instructed Clyde Snow’s attorney to draft a proposed
written order, including findings of fact and conclusions of law,
which the court adopted.
¶9 In a written order, the district court concluded that,
“having heard and weighed [the] testimony of witnesses and
other evidence,” Clyde Snow was entitled to the “entire amount
of the interpleaded funds” to satisfy its attorney’s lien. The court
concluded that, based on the expert’s opinion, the method used
to determine the amount Clyde Snow was entitled to was
reasonable because it established a fee proportional to the time
Clyde Snow and Prince Yeates had dedicated to the case. The
court also explained that this method was reasonable given the
complexity of the case; the amount in controversy; the scope of
services rendered by each firm and the results obtained; the
novelty and difficulty of the issues; whether the case was
necessary to vindicate Plaintiff’s underlying action; the efficiency
of the representation; the number of hours billed by each firm;
20140820-CA 4 2018 UT App 69Boyle v. Clyde Snow & Sessions
the nature of the contingency fee agreements; and the expertise
of the attorneys involved. Finally, the court concluded that Boyle
“presented no facts that would indicate that the amount of Clyde
Snow’s claimed lien is unfair or unreasonable” and that his
“argument that he is entitled to be paid more than what he has
already been paid by [each firm] is without merit.” Boyle
appeals.
ANALYSIS
¶10 Boyle contends the district court erred in awarding
attorney fees to Clyde Snow for three reasons. First, he contends
that Clyde Snow failed to perfect its attorney’s lien under Utah
Code section 38-2-7. Second, the court failed to “recognize and
properly consider Mr. Boyle’s valid assignment of contract rights
from Prince Yeates.” Third, the court denied Boyle his due
process rights because he did not have a “full and fair
opportunity to be heard.” We decline to address the merits of
these contentions because they are inadequately briefed.
¶11 An appellant’s brief “must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the [appellant] should prevail on appeal.” See Utah R. App.
P. 24(a)(8). “[A]n appellant who fails to adequately brief an issue
will almost certainly fail to carry its burden of persuasion on
appeal.” Bank of America v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d
196 (quotation simplified). An appellant “must cite the legal
authority on which its argument is based and then provide
reasoned analysis of how that authority should apply in the
particular case, including citations to the record where
appropriate.” Id. ¶ 13.
¶12 Boyle’s principal brief included a “statement of the case,”
describing the facts of the case without providing any record
cites for those facts. Utah R. App. P. 24(a)(6)(A) (providing that
the “statement of the case must include, with citations to the
record[,] the facts of the case, to the extent necessary to
20140820-CA 5 2018 UT App 69Boyle v. Clyde Snow & Sessions
understand the issues presented for review”). Though, standing
alone, this is not necessarily a reason for determining a brief is
inadequate, we are unable to consider any of the purported facts
in this section of his brief. Boyle’s burden of persuasion can be
met only if the facts used in the argument section of the brief are
sufficient to provide context for the events that occurred in the
district court, are correctly shown to be in the record, and are
analyzed in relation to pertinent legal authority. See Adamson,
2017 UT 2, ¶¶ 12–13. That is not the case here.
¶13 For example, with respect to his contention that Clyde
Snow failed to perfect its attorney’s lien, Boyle argues that the
restated notice of attorney’s lien filed in June 2013—one month
after the underlying wrongful death action was settled—was not
perfected because “[n]o demand to [Plaintiff] for payment had
been made as required by” Utah Code section 38-2-7. We are at a
loss as to how Boyle reached this conclusion, given that Clyde
Snow sent a letter to Plaintiff in July 2010, demanding payment
of the costs and fees it incurred during its nearly three years of
litigating the wrongful death action. 3 Because Clyde Snow sent
the letter more than thirty days before it filed the restated notice
of attorney’s lien in June 2013, it complied with Utah Code
section 38-2-7. See Utah Code Ann. § 38-2-7(5)(c) (LexisNexis
3. Boyle’s brief also quotes the language from Clyde Snow’s
restated notice of lien filed in June 2013 that states, “Clyde Snow
initially made demand for recognition of its right to payment of
its fees on July 2, 2010, well more than 30 days ago. It
subsequently provided detailed time and expense itemization to
[Prince Yeates] on June 24, 2011, and again on September 8, 2011,
supporting the lien amount.” This information was contained
within the record, though neither party has confirmed nor
disputed it. In any event, Boyle fails to explain how this
information was insufficient but instead relies on his
unsubstantiated claim that Clyde Snow did not demand
payment.
20140820-CA 6 2018 UT App 69Boyle v. Clyde Snow & Sessions
2010). 4 Boyle has failed to support his contention, and given the
contrary evidence in the record, he has not carried his burden of
persuasion.
¶14 Without fully articulating his reasoning, Boyle also asserts
that Clyde Snow failed to perfect its lien because all three of
Clyde Snow’s notices of attorney’s lien violated other
subsections of Utah Code section 38-2-7. But he cites the same
subsections of the statute for each alleged violation without
providing a year for the statute that applies to each of his
assertions. This failure has placed the burden on this court to
determine whether he is referring to the version applicable in
(1) 2010 when Clyde Snow first filed its notice of attorney’s lien;
(2) 2013 when Clyde Snow filed its restated notice of attorney’s
lien; or (3) 2014 when Clyde Snow filed its second restated notice
of attorney’s lien. This is a significant oversight because the
statutory provisions have been continually revised. Based on his
citations, it is unclear whether he applied the relevant versions
to each challenge, and, as our supreme court has made clear, an
appellant may not “dump the burden of argument and research”
on an appellate court. See Adamson, 2017 UT 2, ¶ 11. Without
providing proper citations to legal authority or to the record,
Boyle has failed to meet his burden of persuasion with respect to
his contentions that Clyde Snow failed to perfect its attorney’s
lien under Utah Code section 38-2-7.
¶15 With respect to his two other contentions, Boyle has failed
to develop any reasoned analysis, supported by case law, in
explaining why he is entitled to relief on appeal.
4. Boyle raises Clyde Snow’s alleged failure to send a demand
for payment prior to filing the restated notice of attorney’s lien in
2013 in violation of Utah Code section 38-2-7. Because Clyde
Snow sent a demand letter in July 2010, we refer to the 2010
Code.
20140820-CA 7 2018 UT App 69Boyle v. Clyde Snow & Sessions
¶16 For example, Boyle asserts the district court failed to
recognize the assignment of contract rights in his favor, but he
merely provides a definition of assignment of contract rights—as
articulated in Sunridge Development Corp. v. RB & G Engineering,
Inc., 2010 UT 6, ¶ 13, 230 P.3d 1000. He then states that because
Prince Yeates “had previously assigned 80 percent of its rights in
[Plaintiff’s] contract years before to Boyle[, Prince Yeates] could
not give up more rights in the interpleader than [it] possessed.”
¶17 But our review of the record shows that Boyle’s
employment agreement with Prince Yeates provided that, after
Prince Yeates recovered out-of-pocket costs and twenty percent
of the recovery under its contingency fee with Plaintiff,
Thomas D. Boyle and [the other attorney] (by
agreement between them) share, proportionate to
their hourly contributions to the case, the
remaining 80 percent of the attorney’s fee from
which is paid (a) the hourly time of other [Prince
Yeates] timekeepers at their standard hourly rates,
(b) time worked by [another individual] (by
separate agreement between [that individual], Mr.
Boyle and [the other attorney]) and (c) Clyde Snow
& Session’s interest in any recovery received.
(Emphasis added.) In other words, the assignment provision
required that, in the event Plaintiff recovered damages, Boyle
was required to reimburse Clyde Snow for the costs and fees it
had incurred during its representation of Plaintiff. The record
also shows that Prince Yeates disclaimed any interest it may
have had to the interpleaded funds and assigned “any such
interest to Mr. Boyle” and a second attorney.
¶18 Boyle has failed to explain why Prince Yeates’s
assignment of rights to Boyle, which required him to pay Clyde
Snow and others who helped litigate the underlying wrongful
death case, did not comport with the court’s conclusion that,
20140820-CA 8 2018 UT App 69Boyle v. Clyde Snow & Sessions
because there were “no excess [interpleaded] funds[,] . . . the
assignment issue raised by Mr. Boyle is immaterial.” He has
therefore failed to meet his burden of persuasion with respect to
this issue.
¶19 Finally, Boyle claims his due process rights under the
Fifth and Fourteenth Amendments to the United States
Constitution were violated because the district court denied him
a “full and fair opportunity to be to heard” as “the assignee of
[Plaintiff].” Boyle states that he was Plaintiff’s “assignee under
the [CFA]” with Clyde Snow, but he does not explain how the
CFA assigned Plaintiff’s rights to him. Instead, he provides
thirteen numbered paragraphs that articulate motions filed with
the district court and the court’s rulings on those motions and in
its final order. Boyle cites his memorandum in support of
summary judgment, which states, “Boyle is the assignee of
[Plaintiff’s] rights, title, and interest in and to [the CFA] between
[Plaintiff] . . . and [Clyde Snow] . . . . Date[d] December 6, 2013.”
This is perplexing because Boyle has previously agreed that the
CFA was entered into in 2007, not 2013; and this memorandum
states that the information could be found in an exhibit entitled
“[Plaintiff’s] Assignment to Boyle, dated December 13, 2013”
rather than the CFA entered into by Plaintiff and Clyde Snow.
Boyle has not referred us to the exhibit purportedly assigning
him Plaintiff’s rights in the underlying case.
¶20 Boyle further argues that the district court violated his
due process rights because the court “failed to apply the factors
set forth by the Utah Supreme Court, failed to apply Utah law,
[and] due process law.” Boyle references the court’s order in
which the court articulated and analyzed “all of the factors set
forth by the Utah Supreme Court” with respect to awarding
interpleaded funds and concluding that those factors “weigh[ed]
in favor of Clyde Snow[] and supported Clyde Snow’s lien.”
Without “providing reasoned analysis” supported by legal
authority, Boyle cannot meet his burden of persuasion on
appeal. See Adamson, 2017 UT 2, ¶ 13. We therefore decline to
20140820-CA 9 2018 UT App 69Boyle v. Clyde Snow & Sessions
address this claim based on Boyle’s failure to adequately brief
his argument and to persuade us of its validity.
CONCLUSION
¶21 Boyle has failed to develop a reasoned analysis supported
by citations to legal authority or relevant parts of the record to
support his contentions of error. We therefore decline to address
his arguments on the merits, affirm the district court’s award of
attorney fees to Clyde Snow, and remand to the district court to
dismiss with prejudice Boyle’s claim for additional attorney fees
and to disburse any remaining interpleaded funds as is
appropriate in view of our decision.
20140820-CA 10 2018 UT App 69