Griffin v. Cutler

2014 UT App 251
_________________________________________________________

THE UTAH COURT OF APPEALS

RONALD E. GRIFFIN,
Plaintiff and Appellant,
v.
RICHARD H. CUTLER AND SANDRA S. CUTLER,
Defendants and Appellees.

Opinion
No. 20120351-CA
Filed October 23, 2014

Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 060700032

Ronald E. Griffin, Appellant Pro Se

Richard H. Cutler and Sandra S. Cutler, Appellees
Pro Se1

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH
concurred.2

VOROS, Judge:

¶1 Ronald E. Griffin, an attorney, sued his former clients,
Richard H. Cutler and Sandra S. Cutler, for nonpayment of legal

1. The Cutlers filed no brief on appeal.

2. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
Griffin v. Cutler

fees. The trial court denied Griffin’s fees on two grounds: that his
claim was time-barred and that his fees were unreasonable. We
affirm.

BACKGROUND

Li v. Cutler

¶2 Griffin represented the Cutlers in various legal matters,
starting in 1993. The Cutlers leased commercial property from
the Lis. In 1995, the Lis demanded that the Cutlers repave the
property’s parking lot. The Cutlers refused and the Lis sued.
Griffin represented the Cutlers in Li v. Cutler from 1997 to 2001
or 2002. He filed a counterclaim on their behalf, alleging various
causes of action. He also filed and responded to a number of
pretrial motions that required briefing and appearance at court
hearings. The Cutlers settled the case in February 2001 by paying
the Lis $10,000. Griffin concluded his work on the case the
following year.

Griffin v. Cutler

¶3 While representing the Cutlers, Griffin sent them several
engagement letters. The current dispute centers on an
engagement letter dated January 1, 2000. The letter stated that
Griffin had increased his billing rate to $150 per hour and
reiterated that he charged ten percent interest on balances over
thirty days old. The letter also stated, ‚If you breach this
agreement, I will be entitled to recover all costs of collection and
enforcement, including reasonable attorney fees.‛ It also
informed the Cutlers of their outstanding balance of $38,657.85.

¶4 The letter concluded, ‚If this fee arrangement meets your
approval, please sign the original acknowledgment below and
return it to me in the enclosed, self-addressed envelope.‛ The
acknowledgment read, ‚I acknowledge, accept, and ratify the
Representation Agreement identified above, including the
outstanding balance owed and the increase in the standard

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hourly rate effective January 1, 2000.‛ On January 17, 2000, the
Cutlers signed and returned the letter.

¶5 According to Griffin, between January 1 and December 1,
2000, the Cutlers’ outstanding balance ballooned from $38,657.85
to $109,242.18. The parties disagreed at trial about how often
billing statements were sent to the Cutlers. Griffin admitted that
he fell behind on his billing statements in early 2000 but
maintained that he started submitting regular billing statements
again later that year. According to the Cutlers, billing statements
came only sporadically. Griffin’s final billing statement, dated
February 1, 2002, describes his work to retrieve discovery
documents from opposing counsel, at which point the
outstanding balance stood at $125,851.10. The Cutlers paid a
total of $5,300 to Griffin for his services in connection with Li v.
Cutler.

¶6 Griffin eventually sued. Griffin prosecuted the case
himself until trial, where he was represented by counsel. At trial
he sought fees, costs, and prejudgment interest totaling more
than $300,000, plus attorney fees and costs accrued in connection
with the present action.

¶7 Following a two-day bench trial, the trial court denied all
requested relief. As we read its ruling, the trial court relied on
two separate grounds for doing so. With respect to the
$38,657.85 acknowledged in the January 2000 engagement letter,
the court’s findings state that ‚even though the Cutlers signed
this letter and even though they ratified the $38,000.00, the Court
finds that the $38,000.00 was incurred under an oral agreement.‛
It thus ruled that the four-year statute of limitations applied and
that ‚the applicable statute of limitations *had+ run on the
$38,000.‛ In addition, the court concluded that Griffin’s ‚claims
against [the Cutlers] fail on the basis of Utah Rule of Professional
Conduct 1.5.‛ It found that Griffin had failed to keep the Cutlers
apprised of his fees; that he provided no billing statements
between April 2000 and January 2006; that he abandoned
collection efforts; that the fees were excessive; and that he had

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exploited the Li lawsuit to generate legal fees—in short, that the
fees were unreasonable.

ISSUES ON APPEAL

¶8 Griffin advances five contentions on appeal. First, he
contends that the trial court erred in ruling as a matter of law
that his claim against the Cutlers was barred by the four-year
statute of limitations applicable to oral contracts.

¶9 Second, Griffin contends that the trial court failed to
correctly apply the parol evidence rule, erroneously concluding
that Griffin and the Cutlers had a contingent-fee arrangement.

¶ 10 Third, Griffin contends that the trial court exceeded the
scope of its discretion in awarding him no attorney fees for his
work in Li v. Cutler.

¶ 11 Fourth, Griffin contends that the trial court erred in
awarding him no attorney fees in connection with the present
litigation.

¶ 12 Finally, Griffin contends the trial court erred in denying
his request for prejudgment interest on his accrued fees in Li v.
Cutler.

ANALYSIS

I. Statute of Limitations

¶ 13 Griffin contends that the trial court erred in denying a
portion of his claim for fees under the statute of limitations.
Griffin reads the trial court’s statute-of-limitations ruling to
apply only to the $38,657.85 balance the Cutlers acknowledged
in the January 2000 engagement letter. He notes that the court’s
discussion of the applicable statute of limitations contains ‚no
reference to the attorney fees that accrued after the $38,657.85.‛

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By the same token, having concluded that this portion of
Griffin’s claim was time-barred, the court had no need to
consider whether these legal fees were otherwise recoverable.
And indeed the court’s later discussion of the reasonableness of
Griffin’s fees contains no explicit reference to his work before
January 2000. Accordingly, like Griffin, we understand the trial
court to have denied the $38,657.85, and only the $38,657.85, as
falling outside the statute of limitations.

¶ 14 The application of a statute of limitations is a legal
determination, which we review for correctness. Ottens v.
McNeil, 2010 UT App 237, ¶ 20, 239 P.3d 308. However, ‚*t+o the
extent that the statute of limitations analysis involves ‘subsidiary
factual determination*s+,’ we review those factual
determinations using ‘a clearly erroneous standard.’‛ Id. (second
alteration in original) (quoting Spears v. Warr, 2002 UT 24, ¶ 32,
44 P.3d 742).

¶ 15 Two possible statutes apply to this dispute. The statute of
limitations for actions based on an ‚instrument in writing‛ is six
years:

An action may be brought within six years . . .
upon any contract, obligation, or liability founded
upon an instrument in writing, except those
mentioned in Section 78B-2-311 . . . .

Utah Code Ann. § 78B-2-309(2) (LexisNexis 2012). The statute of
limitations for actions not based on an instrument in writing is
four years after ‚the last charge is made or the last payment is
received.‛ Id. § 78B-2-307(1)(a).

¶ 16 Griffin’s principal argument is that a 1993 engagement
letter ‚established an open account for services‛ and that by
suing within four years of the last charge on that account, he
satisfied the four-year statute of limitations. He filed suit January
17, 2006; the last charge made on the account, according to
Griffin, ‚is dated January 22, 2002.‛ By his calculation, then, he
made the four-year cutoff with several days to spare.

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¶ 17 However, the trial court found that Griffin ‚did not
provide those billing statements‛—from April 2000 forward—
‚until January 2006.‛ Griffin does not challenge this finding as
clearly erroneous. In effect, then, Griffin contends that a creditor
can restart the clock on a stale account by charging the account
without informing the debtor until the time of suit—here,
slightly less than four years later. Griffin did not advance this
theory in the trial court and he does not support it with legal
authority on appeal. An inadequately briefed claim is by
definition insufficient to discharge an appellant's burden to
demonstrate trial court error. See Salt Lake County v. Butler, 2013
UT App 30, ¶ 37 n. 5, 297 P.3d 38. Accordingly, Griffin fails to
demonstrate that the trial court erred here.

¶ 18 Griffin next argues that the trial court should have
applied the six-year statute governing written obligations rather
than the four-year statute of limitations governing oral
obligations. Subject to one exception inapplicable here, the six-
year statute applies to ‚any contract, obligation, or liability
founded upon an instrument in writing.‛ Utah Code Ann. § 78B-
2-309(2). Griffin sued six years to the day after the Cutlers signed
the January 2000 engagement letter, seeking, in part, fees
accrued and unpaid prior to that date. The first question, then, is
whether Griffin sued on an instrument in writing.

¶ 19 In that letter, which the Cutlers agree they signed, they
expressly acknowledged an outstanding balance of $38,657.85.
Nevertheless, the trial court’s findings state that ‚this was an
oral contract‛ and that the Cutlers’ acknowledgment of the
outstanding balance ‚does not come as a new contract, from
which a statute of limitations arises.‛

¶ 20 On appeal, Griffin cursorily challenges this conclusion.
He asserts that he ‚filed this lawsuit on January 17, 2006, within
the six-year statute of limitations for written contracts.‛ He also
notes that the trial court ‚seems to conclude that the 1993 fee
agreement was an oral contract and apply the Utah Code . . .
language on oral contracts not open accounts to conclude that
the statute of limitations ‘ran long ago.’‛ But Griffin does not

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analyze the 1993 engagement letter under the rules of contract
law; does not examine the statute governing written
acknowledgements, see Utah Code Ann. § 78B-2-113 (LexisNexis
2012); and does not discuss the difference, if any, between a
written obligation and a written acknowledgement of a prior
oral obligation, see Still v. Perroni Law Firm, 385 S.W.3d 182, 189
(Ark. 2011) (holding that for purposes of the statute of
limitations, a written acknowledgment of a debt does not
convert an oral obligation into a written contract). Accordingly,
we conclude that Griffin has not carried his burden on appeal of
demonstrating trial court error.

¶ 21 We therefore affirm the trial court’s denial, on statute of
limitations grounds, of Griffin’s claim for the $38,657.85 in fees
accrued before, and acknowledged in, the January 2000
engagement letter. However, this ruling does not apply to fees
accrued after that date. The balance of this opinion addresses
those fees.

II. Parol Evidence

¶ 22 Griffin contends that the trial judge misinterpreted and
misapplied the parol evidence rule to the engagement letter,
incorrectly relying on extrinsic evidence to conclude that the Li v.
Cutler case became, in essence, ‚a contingency fee case and one
that Griffin undertook largely on his own.‛ 3 Read in context, the
trial court found in effect that by abandoning his collection
efforts Griffin waived his fee. However, Griffin has not
provided, nor can we find, record evidence that this issue was
preserved in the trial court.

3. A contingent fee is generally understood to mean ‚*a+ fee
charged for a lawyer’s services only if the lawsuit is successful or
is favorably settled out of court.‛ Black’s Law Dictionary 362 (9th
ed. 2009). Contingent fees are usually ‚calculated as a percentage
of the client’s net recovery.‛ Id.

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¶ 23 ‚Generally, ‘in order to preserve an issue for appeal the
issue must be presented to the trial court in such a way that the
trial court has an opportunity to rule on that issue.’‛ Pratt v.
Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (quoting Brookside Mobile
Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968). ‚The
Utah Rules of Appellate Procedure also require that the
appellant’s brief provide a citation to the paginated record
demonstrating where the issue was preserved, or demonstrate
that the unpreserved issue meets an exception to the
preservation rule.‛ Seamons v. Brandley, 2011 UT App 434, ¶ 3,
268 P.3d 195.

¶ 24 Griffin has not provided a citation demonstrating where
he presented this issue to the trial court. Nor does our review of
the record reflect that Griffin ever argued below that the trial
court ‚misinterpreted and misapplied‛ the parol evidence rule.
Consequently, we decline to address this contention.

III. Reasonableness of Fees Accrued After January 1, 2000

¶ 25 We now turn to the reasonableness of the fees accrued
after the $38,657.85 acknowledged in the January 2000
engagement letter. As explained above, the trial court disallowed
these fees on the merits rather than on the statute of limitations.
Griffin contends that the trial court abused its discretion by
failing to perform the requisite analysis in determining that his
legal fees should be reduced to zero.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. Softsolutions, Inc. v. Brigham Young
Univ., 2000 UT 46, ¶ 12, 1 P.3d 1095.

4. Griffin actually says that the trial court ‚exceeded the scope of
its judicial authority‛ in denying his claim for fees. ‚A court
wrongfully uses its judicial authority when it abuses its
discretion.‛ Snow, Christensen & Martineau v. Lindberg, 2013 UT
15, ¶ 21, 299 P.3d 1058.

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¶ 26 Our supreme court established the proper analysis to
determine the reasonableness of attorney fees in Dixie State Bank
v. Bracken, 764 P.2d 985 (Utah 1988). 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?

Id. at 990 (footnotes omitted). The Code of Professional
Responsibility forbids a lawyer to ‚collect an unreasonable fee.‛
Utah R. Prof’l Conduct 1.5(a). It lists eight ‚factors to be
considered in determining the reasonableness of a fee‛:

(a)(1) the time and labor required, the novelty and
difficulty of the questions involved and the skill
requisite to perform the legal service properly;

(a)(2) the likelihood, if apparent to the client, that
the acceptance of the particular employment will
preclude other employment by the lawyer;

(a)(3) the fee customarily charged in the locality for
similar legal services;

(a)(4) the amount involved and the results
obtained;

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(a)(5) the time limitations imposed by the client or
by the circumstances;

(a)(6) the nature and length of the professional
relationship with the client;

(a)(7) the experience, reputation and ability of the
lawyer or lawyers performing the services; and

(a)(8) whether the fee is fixed or contingent.

Id. These eight factors ‚do not represent an exclusive list,‛ and
not every factor will be relevant in every case. Long v. Ethics &
Discipline Comm., 2011 UT 32, ¶ 45, 256 P.3d 206. Furthermore,
although ‚the amount involved‛ appears on this list, our
supreme court has advised that ‚care should be used in putting
much reliance on this factor.‛ Dixie State Bank, 764 P.2d at 990.

¶ 27 Dixie State Bank involved an award of fees against an
opposing party. Id. at 986–88. However, as noted above, rule 1.5
requires the fees attorneys charge their own clients to be
reasonable also. Accordingly, we conclude that the ‚practical
guidelines‛ announced in Dixie State Bank apply here. See id. at
989.

¶ 28 ‚An award of attorney fees must be based on the evidence
and supported by findings of fact.‛ Cottonwood Mall Co. v. Sine,
830 P.2d 266, 268 (Utah 1992). The trial 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). Factors such as those outlined
in Dixie State Bank ‚should inform the court’s meaningful
appraisal.‛ Id. Finally, the court’s findings ‚should detail the
factors considered dispositive by the trial court in calculating the
award.‛ Id.

¶ 29 The trial court here entirely disallowed Griffin’s claim for
legal fees. The court concluded that his claims ‚fail on the basis
of Utah Rule of Professional Conduct 1.5‛; that Griffin was

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‚seeking to collect too high *a fee+ in this case‛; that Griffin ‚had
the ability to resolve the Li v. Cutler case early . . . at a relatively
low cost‛ to the Cutlers; that ‚the length and nature of [their]
professional relationship . . . simply do not justify the amount of
the fees that *Griffin+ is seeking‛; that Griffin breached his duty
of ‚giving *the Cutlers+ information and keeping them abreast,
including in writing‛; and that Griffin failed to timely bill the
Cutlers. Although the court did not use the word, it disallowed
Griffin’s fees on the ground that they were unreasonable.

¶ 30 Griffin argues on appeal that the trial court failed to
engage in a Dixie State Bank analysis. He contends that ‚the lack
of a disciplined and thorough Dixie State Bank analysis promoted
an all-or-nothing approach and a result that is unreasonably
harsh.‛

¶ 31 In fact, the trial court’s findings are voluminous and
address a majority of the factors identified in rule 1.5 of the Utah
Rules of Professional Conduct. Although the ruling does not cite
Dixie State Bank, the court placed heavy emphasis on the second
Dixie State Bank factor, examining how much of the work Griffin
performed was reasonably necessary to prosecute the Li case. See
Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah 1988). On that
scale, the court concluded that Griffin’s fees were ‚very
excessive‛ and ‚seriously in excess‛ based on ‚what the Li v.
Cutler case was really about.‛ We thus do not agree that the trial
court failed to apply the correct law in its determination of
reasonableness.

¶ 32 Griffin also challenges the adequacy of the court’s
findings. He asserts that the court’s findings ‚are rife with
unsupported speculation.‛ In addition, he asserts that the court’s
findings lack any ‚point-by-point analysis‛ or ‚evaluation of the
entries‛ in his billing statements ‚to see if some were justified
and reasonable.‛ As a result of this lack of specificity, he argues,
the court’s ‚reasoning is not evident and Griffin is left in
bewilderment at the result.‛

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¶ 33 However, Griffin did not preserve this challenge to the
court’s findings. To preserve an appellate challenge to the
adequacy of trial court findings, an appellant must first raise the
objection in the trial court with sufficient clarity to alert the court
to the alleged inadequacy. See 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶ 56, 99 P.3d 801. Griffin did object to the proposed
findings and conclusions on various grounds, but not this one.
Accordingly, his challenge to the adequacy of the court’s
findings fails.

¶ 34 We thus reject Griffin’s challenges to the trial court’s
reasonableness determination with respect to fees accrued after
January 2000.

IV. Attorney Fees and Interest in the Present Action

¶ 35 Griffin also contends that his right to attorney fees
incurred in prosecuting the present action was established at
trial by ‚uncontroverted evidence of a binding, written
contract.‛ We note that although Griffin was represented by
counsel at trial, he handled some or all the pretrial litigation
himself.

¶ 36 Whether attorney fees are recoverable in an action is a
legal determination, which we review for correctness. Redd v.
Hill, 2013 UT 35, ¶ 15, 304 P.3d 861. ‚However, the *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. (citation and internal
quotation marks omitted).

¶ 37 ‚If the legal right to attorney fees is established by
contract, Utah law clearly requires the court to apply the
contractual attorney fee provision and to do so strictly in
accordance with the contract’s terms.‛ Jones v. Riche, 2009 UT
App 196, ¶ 2, 216 P.3d 357. However, ‚*a+n award of attorney
fees must be based on the evidence and supported by findings of
fact.‛ Foote v. Clark, 962 P.2d 52, 55 (Utah 1998) (citation and
internal quotation marks omitted).

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¶ 38 Furthermore, pro se litigants may not recover attorney
fees, even if the pro se litigant is a licensed attorney. Strohm v.
ClearOne Communications, Inc., 2013 UT 21, ¶ 92, 308 P.3d 424.
‚Because the lawyer-litigant’s ability to competently present a
claim without the aid of retained counsel is an inherent
advantage, we are loath to enhance that advantage by giving the
lawyer-litigant recovery not only as a successful party, but also
as that party’s attorney.‛ Id. (citation and internal quotation
marks omitted).

¶ 39 Here, the contract’s terms, as stated in the January 2000
engagement letter, provide as follows: ‚If you breach this
agreement, I will be entitled to recover all costs of collection and
enforcement, including reasonable attorney fees.‛ Griffin’s right
to recover any attorney fees at all thus depends on whether he
has demonstrated breach.

¶ 40 As we noted above, we affirm the trial court’s denial of
fees accrued before the January 2000 engagement letter as time-
barred, and of fees accrued after the letter as unreasonable.
Accordingly, Griffin has failed to demonstrate breach. We thus
conclude that the trial court properly denied Griffin’s request for
attorney fees accrued in prosecuting the present action.

V. Prejudgment Interest

¶ 41 Finally, Griffin contends that he is entitled to
prejudgment interest on his legal fees incurred in connection
with Li v. Cutler. We review a trial court’s decision to grant or
deny prejudgment interest for correctness. Smith v. Fairfax Realty,
Inc., 2003 UT 41, ¶ 16, 82 P.3d 1064.

¶ 42 Prejudgment interest is appropriate ‚where the damage is
complete and the amount of the loss is fixed as of a particular
time, and that loss can be measured by facts and figures.‛ Bjork
v. April Indus., Inc., 560 P.2d 315, 317 (Utah 1977). However, ‚a
prevailing party may not receive prejudgment interest on
attorney fees where the reasonableness of those fees is in
dispute.‛ Kraatz v. Heritage Imports, 2003 UT App 201, ¶ 65, 71

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P.3d 188. ‚Such fees would be inappropriate for prejudgment
interest because they are not fixed or calculable with
mathematical certainty until the court makes an independent
determination of their reasonableness.‛ Id.

¶ 43 Here, we affirm the trial court’s denial of prejudgment
interest on two grounds. First, the reasonableness of those fees
was disputed. See id. Second, because we affirm the trial court’s
denial of those fees, Griffin has no judgment to accrue interest in
any event.

CONCLUSION

¶ 44 Griffin has not demonstrated on appeal that the trial court
erred in dismissing his claim for $38,657.85 as time-barred. Nor
has he demonstrated that the trial court erred in rejecting the
remainder of his claimed fees as unreasonable. The judgment of
the trial court is accordingly affirmed.

____________

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