Weber v. Mikarose, LLC , 800 Utah Adv. Rep. 16 ( 2015 )

2015 UT App 276THE UTAH COURT OF APPEALS
TIFFANY WEBER,
Appellee,
v.
MIKAROSE, LLC, AND BRAD LAWSON,
Appellants.
Per Curiam Decision
No. 20150175-CA
Filed November 19, 2015
Fourth District Court, American Fork Department
The Honorable Christine S. Johnson
No. 130100161
Andrew W. Stavros and Adam G. Clark, Attorneys
for Appellants
Robert C. Avery and Nathan E. Burdsal, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Mikarose, LLC and Brad Lawson appeal the district
court’s grant of additional attorney fees incurred in collection
proceedings on the judgment affirmed in Weber v. Mikarose, LLC,
2015 UT App 130, 351 P.3d 121. We affirm.
¶2 As allowed by the previously affirmed March 28, 2014
judgment, Tiffany Weber filed a motion for an augmented
judgment in the amount of costs and attorney fees incurred from
Weber v. Mikarose
March 29, 2014 through December 15, 2015.1 Lawson filed a pro
se objection to the motion, raising the arguments that (1) the case
was pleaded under tier one and limited to $50,000 in damages,
(2) granting additional attorney fees was contrary to judicial
economy, and (3) the claimed attorney fees were not reasonable
and the affidavits were “riddled with mistakes.” Lawson recited
the factors intended to guide trial courts in determining
reasonable attorney fees as stated in Dixie State Bank v. Bracken,
764 P.2d 985 (Utah 1988). Lawson challenged attorney fees
related to tasks that he claimed should have been performed by
paralegals, to travel to the courthouse, and to researching the
title on the judgment debtor’s home. Lawson also argued that
the work performed by Weber’s attorney was not “reasonably
necessary,” that counsel’s billing rate was not consistent with
customary rates, and that fees could not be recovered because
they were not apportioned between Lawson and Mikarose.
Weber’s reply to the opposition was accompanied by the
affidavits of other area attorneys stating that the rates charged
were customary in the area.
¶3 “*T+he trial court has broad discretion in determining
what constitutes a reasonable fee, and we will consider that
determination against an abuse-of-discretion standard.” Id. at
991. In determining the amount of an attorney fees award, a
district court “should find answers to four questions,” which are
(1) “*w]hat legal work was actually performed;” (2) “*h]ow
much of the work performed was reasonably necessary to
adequately prosecute the matter;” (3) “*i]s the attorney’s billing
rate consistent with rates customarily charged in the locality for
similar services;” and (4) “*a]re there circumstances which
require consideration of additional factors, including those listed
in the [Utah Rules of Professional Conduct].” Id. at 990. On
appeal, Mikarose and Lawson claim, first, that the district court
abused its discretion in awarding additional attorney fees in the
1. An earlier augmentation of the judgment to add attorney fees
incurred through March 28, 2014, was not opposed or appealed.
20150175-CA 2 2015 UT App 276Weber v. Mikarose
amount of $16,090.00 and, second, that the February 2, 2015
Order Re: Plaintiff’s Motion for Augmented Judgment did not
include sufficient findings of fact to support the attorney fees
award. That order was preceded by a January 9, 2015 Ruling on
Plaintiff’s Motion for Augmented Judgment, which we may also
review. See Merriam v. Merriam, 799 P.2d 1172, 1177 (Utah Ct.
App. 1990) (stating that an appellate court may examine findings
expressed from the bench or contained in other court
documents, such as court memoranda); see also Erwin v. Erwin,
773 P.2d 847, 849 (Utah Ct. App. 1989) (stating that in assessing
the sufficiency of the findings, an appellate court is not limited to
the contents of a particular document and the findings may be
expressed orally from the bench or contained in other
documents).
¶4 Neither Mikarose nor Lawson challenged the adequacy of
the district court’s findings to support the award. That claim can
therefore only be considered under a plain error analysis.
Furthermore, Mikarose did not file an objection to Weber’s
motion requesting augmentation of the attorney fees award and
it preserved no issue regarding reasonableness of the fee award
for appeal. Mikarose argues that it may challenge the
reasonableness of the attorney fees awarded because the issue
was raised in Lawson’s opposition to the attorney fee request.
MIkarose’s argument is based on its assertion that a reversal of
the fee award as to Lawson “has the inevitable result of striking
fees as unreasonable as to both parties.” That position lacks
merit. Mikarose has not preserved any issues for appeal and
cannot piggy-back on the objections raised by Lawson in order
to challenge the attorney fees award.
¶5 In its January 9, 2015 ruling, the district court ruled that
the tier one limit on damages does not apply to an attorney fees
award, the interest in judicial economy does not prevent a
prevailing party from recovering attorney fees, and the claim
that the fee affidavit was “riddled with mistakes” was not
supported by identification of any genuine mistake. The fact that
some clerical tasks could have been performed at a lower rate by
a paralegal did not support a reduction where Weber’s counsel
20150175-CA 3 2015 UT App 276Weber v. Mikarose
did not employ paralegals, and Weber was not required to
apportion attorney fees where the case did not involve separate
claims against different parties. Finally, the district court opined
that although the fees awarded far outweighed the amount of
damages, the award was supported because “the fees in this case
continue to be incurred as a result of Lawson’s strategy of filing
repeated baseless motions.” The district court directed Weber’s
counsel to prepare a further order.
¶6 On February 2, 2015, the district court signed an Order
Re: Plaintiff’s Motion for Augmented Judgment, awarding
attorney fees of $16,090.00 and costs of $1.00, with interest from
December 14, 2014. In that order, the district court first stated the
undisputed facts that Weber received a judgment that permitted
augmentation for costs and fees incurred in collection efforts and
that Weber was statutorily entitled to an attorney fees award by
the Fair Labor Standards Act (FLSA). See Weber, 2015 UT App
130, ¶ 2, 351 P.3d 121. The district court found that Lawson had
“filed additional motions which necessitated responses by
Weber’s counsel,” causing further fees to be incurred in
execution of the judgment for which Weber was entitled to
compensation. The court found that “the amounts set forth in the
fee affidavit are appropriate for the work performed.” The
district court also found, “No apportionment of fees is required
because this case did not involve separate claims and defenses
against various parties,” and “*t+he rates charged in this case and
set forth in the fee affidavit are appropriate.”
¶7 Because neither Lawson nor Mikarose preserved the
issues they now raise, we may only consider them if an
exception to the preservation rule applies. See State v. Holgate,
2000 UT 74, ¶ 11, 10 P.3d 346. In order to prevail under a plain
error analysis, a party must show that “(i) an error exists; (ii) the
error should have been obvious to the trial court; and (iii) the
error is harmful; i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the party.” In re
A.T.I.G., 2012 UT 88, ¶ 22, 293 P.3d 276 (citation and internal
quotation marks omitted). Lawson and Mikarose’s plain error
claim focuses on the February 2, 2015 order in isolation and
20150175-CA 4 2015 UT App 276Weber v. Mikarose
ignores additional findings contained in the January 9, 2015
ruling. They also argue that the district court’s findings were
inadequate because the district court found that the amounts
were “appropriate for the work performed” rather than using
the word “reasonable,” which they claim demonstrates that the
district court failed “to undertake the necessary analysis
showing the attorney’s fees are reasonable.” Because neither
Lawson nor Mikarose made a timely challenge to the adequacy
of the district court’s findings, they must demonstrate both that
an error was made and that the error would have been “obvious
to the trial court.” See id. (citation and internal quotation marks
omitted). They have done neither. The district court’s findings,
when considered as a whole, are adequate to demonstrate the
reasoning of the district court in considering the relevant factors,
and do not demonstrate error, let alone an obvious error.
¶8 In his brief on appeal, Lawson challenges specific charges
in the fee affidavit as not “reasonably necessary.” As previously
noted, Mikarose did not preserve that challenge. Weber correctly
notes that although Lawson’s objection is cited as the basis for
preserving each of these challenges, that objection did not
preserve challenges made for the first time on appeal. Similar to
the arguments in support of plain error, Lawson argues that
because the district court was required to make an independent
analysis of the Dixie State Bank factors, he was not required to
make a specific challenge to any of the claimed fees he now
disputes. We disagree that he has preserved the challenges he
seeks to make before this court. In the district court, Lawson
objected only to charges related to researching the title to the
judgment debtor’s home, traveling to the court, obtaining a civil
bench warrant, issuing subpoenas to financial institutions, and
obtaining a fee report for the writ of garnishment. The district
court did not abuse its discretion in rejecting Lawson’s
challenge.
¶9 On appeal, Lawson also makes a general, unsupported
argument that Weber was premature in pursuing collection on
her judgment. There is no factual support in the record that
would demonstrate that the collection efforts were premature.
20150175-CA 5 2015 UT App 276Weber v. Mikarose
Lawson also failed to preserve his claim that Weber’s counsel’s
fee affidavit failed to satisfy rule 73 of the Utah Rules of Civil
Procedure. In sum, Lawson has not met his burden of
demonstrating that the district court abused its discretion in
awarding Weber additional attorney fees incurred in collection
efforts.
¶10 We affirm the district court’s award of attorney fees to
augment the earlier awards. Because Weber was awarded fees
below under the FLSA, has prevailed on appeal, and has
requested fees on appeal, we remand to the district court for the
limited purpose of awarding fees reasonably incurred on this
appeal.
20150175-CA 6 2015 UT App 276