Crane-Jenkins v. Mikarose, LLC ( 2016 )

2016 UT App 71THE UTAH COURT OF APPEALS
MICHELLE CRANE-JENKINS,
Appellee,
v.
MIKAROSE, LLC AND MICHAELLA LAWSON,
Appellants.
Memorandum Decision
No. 20150225-CA
Filed April 7, 2016
Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 130401718
Andrew W. Stavros and Austin B. Egan, Attorneys
for Appellants
Robert C. Avery and Nathan E. Burdsal, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGE KATE A. TOOMEY and SENIOR JUDGE
PAMELA T. GREENWOOD concurred. 1
VOROS, Judge:
¶1 Michaella Lawson and Mikarose, LLC appeal the district
court’s award of attorney fees to augment the default judgment
affirmed in Crane-Jenkins v. Mikarose, LLC, 2015 UT App 270. We
affirm in part, reverse in part, and remand to the district court
for further proceedings consistent with this decision.
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Crane-Jenkins v. Mikarose
¶2 The district court entered a default judgment against
Mikarose, Michaella Lawson, and Brad Lawson on December 9,
2013. Id. ¶ 4. The district court awarded Michelle Crane-Jenkins
attorney fees under the federal Fair Labor Standards Act, 29
U.S.C. § 216 (2012). That statute provides that “[t]he court in
such action shall, in addition to any judgment awarded to the
plaintiff . . . , allow a reasonable attorney’s fee to be paid by the
defendant, and costs of the action.” Id. Accordingly, the district
court “awarded all costs and attorney fees associated with the
collection of the [default] judgment.”
¶3 Brad Lawson, a non-lawyer, filed a motion to set aside or
amend the default judgment as to all defendants. Crane-Jenkins,
2015 UT App 270, ¶ 4. The district court set aside the default
judgment against Brad Lawson, but left in place the judgment
against Michaella Lawson and Mikarose. Id. ¶ 5. Over the next
ten months, the parties filed numerous motions in relation to the
default judgment. The court ultimately dismissed Brad Lawson
from the case, id. ¶ 5 n.2, and rejected as untimely Michaella
Lawson’s and Mikarose’s motions to set aside the default
judgment against them, id. ¶¶ 6–7. Crane-Jenkins then filed a
motion to augment the default judgment with attorney fees and
costs incurred after entry of the default judgment. The court
awarded Crane-Jenkins an additional $25,192.50 in attorney fees,
$107 in costs, and $246.53 in interest. Michaella Lawson and
Mikarose challenge that award as unreasonable.
¶4 “The trial court enjoys broad discretion in determining
what constitutes a reasonable fee, and we consequently review
that determination under an abuse-of-discretion standard.”
Griffin v. Cutler, 2014 UT App 251, ¶ 25, 339 P.3d 100. “Under
this standard, a district court’s ruling will not be reversed unless
it was beyond the limits of reasonability or not based on an
evaluation of the evidence.” Strohm v. ClearOne Commc’ns, Inc.,
2013 UT 21, ¶ 52, 308 P.3d 424 (citations and internal quotation
marks omitted).
20150225-CA 2 2016 UT App 71Crane-Jenkins v. Mikarose
¶5 “‘An award of attorney fees must be based on the
evidence and supported by findings of fact.’” Griffin, 2014 UT
App 251, ¶ 28 (quoting Cottonwood Mall Co. v. Sine, 830 P.2d 266,
268 (Utah 1992)). In determining a reasonable fee, “as a practical
matter the trial court should find answers to four questions”:
1. What legal work was actually performed?
2. How much of the work performed was
reasonably necessary to adequately prosecute
the matter?
3. Is the attorney’s billing rate consistent with
the rates customarily charged in the locality
for similar services?
4. Are there circumstances which require
consideration of additional factors, including
those listed in the Code of Professional
Responsibility?
Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah 1988). The
district court “must make an independent evaluation of the
reasonableness of the requested fees in light of the parties’
evidentiary submissions.” Foote v. Clark, 962 P.2d 52, 55 (Utah
1998). “It is important to note that with this analysis, what an
attorney bills or the number of hours spent on a case is not
determinative.” Dixie State Bank, 764 P.2d at 990. “‘The amount
of the damages awarded in a case does not place a necessary
limit on the amount of attorney[] fees that can be awarded.’” Id.
(quoting Cabrera v. Cottrell, 694 P.2d 622, 625 (Utah 1985)).
¶6 Michaella Lawson and Mikarose contend that the district
court abused its discretion when it determined the additional
attorney fees were reasonably necessary. They next contend that
the district court did not enter findings of fact sufficient to
support the additional attorney fee award. They also contend
that the court erred when it awarded attorney fees related to
Brad Lawson and fees related to discovery activities. Finally,
20150225-CA 3 2016 UT App 71Crane-Jenkins v. Mikarose
they contend that Crane-Jenkins’s attorney’s affidavit did not
comply with rule 73 of the Utah Rules of Civil Procedure.
I. Reasonably Necessary Fees
¶7 Michaella Lawson and Mikarose contend that “the default
judgment in the case at bar limits attorney’s fees and costs to
those that are associated with the collection of the instant
judgment.” They identify attorney fees for five “activities that
were unreasonable and had no relation to collecting on the
default judgment.” They identify fees for another five activities
which they argue “were unreasonable in relation to the work
allegedly performed.”
¶8 As an initial matter, we must determine whether
Michaella Lawson and Mikarose adequately preserved the issue
for appeal. See Ellis v. Swensen, 2000 UT 101, ¶ 15, 16 P.3d 1233.
“An issue is preserved for appeal only if it was ‘presented to the
trial court in such a way that the trial court [had] an opportunity
to rule on [it].’” Wohnoutka v. Kelley, 2014 UT App 154, ¶ 4, 330
P.3d 762 (alterations in original) (quoting 438 Main St. v. Easy
Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801). “Merely mentioning an
issue does not preserve it; the issue must be specifically raised,
with relevant legal authority, in a manner that alerts the court to
the need to correct the error.” Brady v. Park, 2013 UT App 97,
¶ 38, 302 P.3d 1220. When more than one party raises an issue on
appeal, “[o]ne party cannot assign as error a ruling against a
different party where the appealing party reserved no
exception.” Godesky v. Provo City Corp., 690 P.2d 541, 548 (Utah
1984). “We will not address the merits of an argument that has
not been preserved absent either plain error or exceptional
circumstances.” Duke v. Graham, 2007 UT 31, ¶ 28, 158 P.3d 540.
¶9 Michaella Lawson preserved this issue as to her. Acting
pro se, she filed an opposition to Crane-Jenkins’s motion for
augmented judgment. She asked the district court “to review the
actions” of Crane-Jenkins’s attorney in order to determine “if he
20150225-CA 4 2016 UT App 71Crane-Jenkins v. Mikarose
pursued this case in a reasonable manner and in the best interest
of his client.” She also argued that Crane-Jenkins should not be
awarded attorney fees for a number of tasks that Michaella
Lawson alleged were “not consistent with work reasonably
necessary.”
¶10 Mikarose, however, stands on different footing. Mikarose
did not oppose the motion for augmented judgment, join in
Michaella Lawson’s opposition, or otherwise object to the
attorney fees. In fact, the district court noted that “[t]he only
party opposing the motion to augment judgment is Michaella
Lawson. Mikarose, LLC has not responded.” On appeal,
Michaella Lawson and Mikarose argue that although “Mikarose
filed no opposition, the issue of the reasonableness of [attorney]
fees was unquestionably preserved for appellate review.” But
the passive construction of that sentence masks the pivotal fact
that Michaella Lawson, a non-lawyer, preserved the issue for
herself, but did not and could not preserve the issue for
Mikarose. See Godesky, 690 P.2d at 548. Because Mikarose did not
preserve the issue, we will not consider the issue as it applies to
Mikarose “absent either plain error or exceptional circumstances.”
See Duke, 2007 UT 31, ¶ 28.
¶11 Michaella Lawson and Mikarose argue that “[e]ven if this
Court concludes that Mikarose did not properly preserve its
right to challenge fees on appeal, trial courts must make an
independent evaluation of the reasonableness of the requested
fees in light of the evidentiary submissions.” (Citing Griffin v.
Cutler, 2014 UT App 251, ¶ 28, 339 P.3d 100.) Mikarose does not,
however, argue that the district court in this case failed to do so.
Further, we conclude that the district court did “make an
independent evaluation of the reasonableness of the requested
fees.” See Griffin, 2014 UT App 251, ¶ 28 (citation and internal
quotation marks omitted).
20150225-CA 5 2016 UT App 71Crane-Jenkins v. Mikarose
¶12 “The trial court ‘must make an independent evaluation of
the reasonableness of the requested fees in light of the parties’
evidentiary submissions.’” Id. (quoting Foote v. Clark, 962 P.2d 52,
55 (Utah 1998)). “Factors such as those outlined in Dixie State
Bank ‘should inform the court’s meaningful appraisal.’” Id.(quoting Foote, 962 P.2d at 55). Here, although the district
court’s findings are somewhat sparse, the court considered the
Dixie State Bank factors, including “[h]ow much of the work
performed was reasonably necessary to adequately prosecute
the matter.” See Dixie State Bank v. Bracken, 764 P.2d 985, 990
(Utah 1988); see also Griffin, 2014 UT App 251, ¶¶ 30–31. In its
ruling, the district court found that the legal work completed by
Crane-Jenkins’s attorney “was, in part, reasonably necessary to
adequately prosecute this matter.” The court determined that “it
[was] reasonable” for Crane-Jenkins to “defend[] the judgment
[she] had already obtained” and therefore “the fees [were]
reasonable because they were incurred in responding to the
motions initiated” by Michaella Lawson. Furthermore, the court
excluded certain fees it determined were not appropriate in
collecting or defending the default judgment. Accordingly, the
district court did not abuse its discretion in determining that the
attorney fees as a whole were reasonably necessary to collect on
the default judgment.
¶13 Michaella Lawson and Mikarose argue that attorney fees
allocated to five identified activities “were unreasonable and had
no relation to collecting on the default judgment.” And they
identify fees for another five activities which they argue “were
unreasonable in relation to the work allegedly performed.”
These claims are inadequately briefed. “Briefs must contain
reasoned analysis based upon relevant legal authority. An issue
is inadequately briefed when the overall analysis of the issue is
so lacking as to shift the burden of research and argument to the
reviewing court.” State v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d
138 (citation and internal quotation marks omitted). Michaella
Lawson and Mikarose do not provide any “citations to the
20150225-CA 6 2016 UT App 71Crane-Jenkins v. Mikarose
authorities” as required by Utah Rule of Appellate Procedure 24.
We therefore decline to address each and every specific attorney
fee entry.
¶14 Even so, we have reviewed these entries and are not
persuaded that the district court abused its discretion in finding
them reasonably necessary. For example, Michaella Lawson and
Mikarose complain that Crane-Jenkins’s attorney’s “phone call
with ‘opposing counsel’ on January 22, 2014 is . . . unrelated to
collections” and cannot be accurate because they had not yet
hired their second attorney. But Crane-Jenkins responds—and
the record shows—that Michaella Lawson and Mikarose did
have counsel on that date. See Crane-Jenkins v. Mikarose, LLC, 2015
UT App 270, ¶ 5. And it would be reasonable for Crane-Jenkins’s
attorney to contact opposing counsel to discuss the case.
¶15 Similarly, Michaella Lawson and Mikarose complain that
Crane-Jenkins’s attorney “billed 1.3 hours” for a hearing which
“lasted three minutes.” Crane-Jenkins responds that her attorney
arrived 20 minutes before the scheduled hearing, that the hearing
started “significantly” later than scheduled because Michaella
Lawson’s and Mikarose’s attorney failed to attend the hearing,
and that Crane-Jenkins’s attorney stayed after the hearing to
discuss the case with her. All of these actions were reasonably
necessary legal work.
II. Findings of Fact
¶16 Michaella Lawson and Mikarose next contend that “the
district court committed plain error by omitting findings of fact
sufficient to support its conclusion that [Crane-Jenkins’s
counsel’s] fees were reasonable.” To establish plain error, “the
appellant must show the following: (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 appellant.” State
v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
20150225-CA 7 2016 UT App 71Crane-Jenkins v. Mikarose
¶17 Michaella Lawson and Mikarose argue that the district
court made “only three findings of fact”: that the default
judgment was entered, that Crane-Jenkins filed a motion to
augment the default judgment, and that Michaella Lawson and
Mikarose satisfied the default judgment. This summary ignores
the findings made by the district court in its ruling on the motion
to augment the default judgment. There the court noted “that the
great majority of the fees claimed arose from [Crane-Jenkins’s]
responding to motions filed by” Michaella Lawson. The court
found, in accordance with the Dixie State Bank analysis, “that the
legal work was actually performed,” that “the legal work was . . .
reasonably necessary to adequately prosecute this matter,” and
that the “attorney’s billing rates are consistent with those
customarily charged in this locality for similar services.”
Although sparse, these findings were not obviously insufficient
to support the district court’s conclusion that additional attorney
fees were reasonable. Accordingly, appellants’ plain error
challenge fails.
III. Fees Related to Brad Lawson
¶18 Michaella Lawson and Mikarose contend that the district
court “abused its discretion by awarding Crane-Jenkins fees for
activities related to Brad Lawson.” They argue that Crane-
Jenkins “was . . . required to allocate fees in connection with
Brad Lawson and omit such fees from her request for an
augmented judgment” against Michaella Lawson and Mikarose.
We agree that Michaella Lawson and Mikarose cannot be
charged with fees incurred exclusively in litigating against Brad
Lawson and accordingly reduce Crane-Jenkins’s award of
attorney fees by $2,917.50.
¶19 In her opposition to Crane-Jenkins’s motion for
augmented judgment, Michaella Lawson specifically challenged
the reasonableness of fees incurred by Crane-Jenkins in litigating
exclusively against Brad Lawson. However, her preservation of
20150225-CA 8 2016 UT App 71Crane-Jenkins v. Mikarose
the issues does not extend to Mikarose. We reiterate that
Mikarose failed to preserve all issues on appeal. Supra ¶ 10.
Because Mikarose did not preserve the issue, we will not
consider the issue as it applies to Mikarose “absent either plain
error or exceptional circumstances.” See Duke v. Graham, 2007 UT
31, ¶ 28, 158 P.3d 540.
¶20 Michaella Lawson and Mikarose argue that the district
court erred when it awarded Crane-Jenkins fees “for work that
pertained directly to [Brad] Lawson”; that under established law
the court should have “required [Crane-Jenkins] to allocate fees
in connection with Brad Lawson”; and that without the error, the
court would have omitted the fees related to Brad Lawson from
the judgment. See Dunn, 850 P.2d at 1208. We agree.
¶21 Our supreme court has “mandated that a party seeking
fees must allocate its fee request according to its underlying
claims.” Foote v. Clark, 962 P.2d 52, 55 (Utah 1998). A party
seeking attorney fees “must ‘categorize the time and fees
expended for (1) successful claims for which there may be an
entitlement to attorney fees, (2) unsuccessful claims for which
there would have been entitlement to attorney fees had the
claims been successful, and (3) claims for which there is no
entitlement to attorney fees.’” Reighard v. Yates, 2012 UT 45, ¶ 41,
285 P.3d 1168 (quoting Foote, 962 P.2d at 55). “Claims must also
be categorized according to the various opposing parties.” Foote,
962 P.2d at 55. “A court cannot award all attorney fees requested
if they have not been allocated as to separate claims [and
parties], but may deny attorney fees altogether for failure to
allocate.” Reighard, 2012 UT 45, ¶ 41. The court’s “findings
should mirror the requesting party’s allocation of fees per claims
and parties and should support any award issued.” Foote, 962
P.2d at 55.
¶22 Crane-Jenkins does not dispute the legal principle
underlying this claim. In fact, in a declaration in support of her
20150225-CA 9 2016 UT App 71Crane-Jenkins v. Mikarose
motion for augmented judgment, her attorney stated, “The work
performed and described herein . . . excludes work directly
related to Brad Lawson and his numerous attempts to oppose
Plaintiff’s dismissal [of Brad Lawson] from this case.” Her
attorney attached to the declaration a “Time Ticket Daily
Report” listing tasks and the associated attorney fees. Michaella
Lawson and Mikarose argue that “despite [counsel’s] statements,
and despite the requirement that he allocate his fees, [counsel’s]
request for fees specifically included several activities directly
related to Brad Lawson.” Specifically they point to entries
related to Brad Lawson’s rule 60(b) motion and counterclaim.
They argue that the attorney fees awarded in the augmented
judgment should be reduced by $4,630. Crane-Jenkins argues
that because Brad Lawson’s motions and claims would have
benefited Michaella Lawson and Mikarose, the court properly
awarded the related attorney fees.
¶23 We agree in part with Michaella Lawson and Mikarose
that, without the required “allocation of fees per claims and
parties,” see id., the district court erred in awarding attorney fees
against Michaella Lawson and Mikarose for claims involving
only Brad Lawson. However, we do not agree that Michaella
Lawson and Mikarose have shown those fees to be $4,630. The
record supports this claim to the extent of $2,917.50.
Accordingly, we reverse and remand to the district court to
reduce the fee award by $2,917.50. This reduction includes $715
for fees relating to Brad Lawson’s rule 60(b) motion, $2,017.50 for
fees relating to responding to Brad Lawson’s counterclaim, and
$185 for fees relating to orders specific to Brad Lawson.
IV. Fees Related to Discovery
¶24 Michaella Lawson and Mikarose next argue that the
district court “abused its discretion when it awarded Crane-
Jenkins attorney’s fees associated with discovery activities.”
They argue that “there are only two possibilities” to explain the
20150225-CA 10 2016 UT App 71Crane-Jenkins v. Mikarose
attorney fees related to discovery: either Crane-Jenkins’s
attorney “was sending [discovery] requests to Defendants
against whom a judgment had already been entered” or he “was
sending these discovery materials to Brad Lawson.”
¶25 Neither Michaella Lawson nor Mikarose preserved this
issue. “To properly preserve an issue for appellate review, the
issue must be raised in the district court. Additionally, the issue
must be specifically raised, in a timely manner, and must be
supported by evidence and relevant legal authority.” Donjuan v.
McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839 (citation omitted).
¶26 Michaella Lawson and Mikarose have not identified a
point in the record where they presented this argument to the
district court. See Utah R. App. P. 24(a)(5) (requiring an
appellant’s brief to provide either a “citation to the record
showing that the issue was preserved in the trial court” or a
“statement of grounds for seeking review of an issue not
preserved”). Nor has our review of the record, including
Michaella Lawson’s memorandum in opposition to the
augmented judgment, discovered their preservation of this
claim. See Wohnoutka v. Kelley, 2014 UT App 154, ¶ 6, 330 P.3d
762 (“An appellate court should not be asked to scour the record
to save an appeal by remedying the deficiencies of an appellant’s
brief. We have nonetheless reviewed the record designated on
appeal . . . .” (citation omitted)). Because Michaella Lawson and
Mikarose did not raise the issue in the district court, they did not
preserve it. Because they did not preserve it, we decline to
consider it. See Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 55,
288 P.3d 1046.
V. Attorney’s Affidavit
¶27 Michaella Lawson and Mikarose argue that Crane-
Jenkins’s attorney’s affidavit supporting the augmentation of
attorney fees does not comply with Utah Rule of Civil Procedure
73. Neither Michaella Lawson nor Mikarose raised this issue
20150225-CA 11 2016 UT App 71Crane-Jenkins v. Mikarose
below. It is therefore unpreserved. See 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. And they do not argue plain
error or exceptional circumstances as it applies to the attorney’s
affidavit. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. We
therefore decline to consider this issue.
VI. Fees on Appeal
¶28 Crane-Jenkins requests an award of attorney fees incurred
on appeal. “[W]hen a party who received attorney fees below
prevails on appeal, the party is also entitled to fees reasonably
incurred on appeal.” Valcarce v. Fitzgerald, 961 P.2d 305, 319
(Utah 1998) (plurality opinion) (citation and internal quotation
marks omitted). “Although we have modified the judgment on
appeal, [Crane-Jenkins] nevertheless may be appropriately
regarded as having prevailed.” See id. Crane-Jenkins, however,
“did not retain all of [her] victory on appeal, and some
adjustment may be necessary so that [she does] not recover fees
attributable to issues on which [she] did not prevail.” See id.Accordingly, we award Crane-Jenkins her attorney fees incurred
on appeal to the extent that she prevailed on appeal and remand
to the district court to calculate Crane-Jenkins’s reasonable fees
on appeal consistent with this decision.
CONCLUSION
¶29 In sum, we reverse the district court’s award of attorney
fees related to Brad Lawson and remand to reduce the judgment
by $2,917.50. We also remand for an award of attorney fees
reasonably incurred by Crane-Jenkins for the issues on which
she prevailed on this appeal. The judgment of the district court is
otherwise affirmed.
20150225-CA 12 2016 UT App 71