Rockwell Transport v. Hooper

2023 UT App 71

THE UTAH COURT OF APPEALS

ROCKWELL TRANSPORT LLC AND THERON BRIGGS,
Appellants,
v.
SAM T. HOOPER, RONALD R. HUNT, AARON SANDERS,
AND ROCKWELL TRANSPORT MANAGEMENT LLC,
Appellees.

Opinion
No. 20210566-CA
Filed July 6, 2023

Third District Court, Salt Lake Department
The Honorable Kent R. Holmberg
No. 180902499

Brett W. Hastings, Attorney for Appellants
Troy L. Booher, Caroline A. Olsen, and
David W. Scofield, Attorneys for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

OLIVER, Judge:

¶1 Theron Briggs, a member of Rockwell Transport LLC
(Rockwell), brought direct and derivative claims against the other
members and the new LLC they formed without him. A special
litigation committee (the SLC) investigated the derivative claims,
and the district court enforced the SLC’s determination to settle
the conversion claim and dismiss the remaining derivative claims.
The court also granted summary judgment in favor of the
defendants on Briggs’s direct claims and denied both sides’
requests for attorney fees. Briggs now appeals these rulings. We
affirm in part and remand the matter with instruction.
Rockwell Transport v. Hooper

BACKGROUND

¶2 In April 2012, Briggs, Sam Hooper, and Ronald Hunt
created Rockwell, a hauling service for “large shipments of
commodities, such as oil and fuel,” in the Uintah Basin. Hooper
and Hunt provided financial support for Rockwell and each held
a forty-six percent ownership interest; Briggs contributed his
considerable experience in the trucking industry and held an
eight-percent ownership interest. In 2014, Briggs resigned as the
trucking manager of Rockwell but maintained his eight-percent
ownership interest. Rockwell was initially profitable, but during
2015 and 2016, it experienced a significant drop in revenue when
oil prices fell. In June 2016, Hooper and Hunt hired Aaron Sanders
to replace Briggs as the trucking manager and gave him an
ownership interest, taken equally from their shares. Five months
later, Hooper, Hunt, and Sanders transferred Rockwell’s assets to
a new company they formed called Rockwell Transport
Management LLC (RTM). Briggs held no ownership interest in
RTM.

¶3 In 2018, Briggs and Rockwell filed a complaint against
Hooper, Hunt, Sanders, and RTM (collectively Defendants),
alleging both direct and derivative claims on behalf of Rockwell.
Specifically, Plaintiffs alleged seven direct and derivative causes
of action: (1) breach of the operating agreement related to capital
contributions (derivative and direct), (2) breach of the operating
agreement related to distributions (derivative and direct),
(3) breach of fiduciary duty (derivative and direct), (4) breach of
Utah Code section 48-3a-404 related to distributions among LLC
members (direct), (5) breach of Utah Code section 48-3a-410
related to information-sharing among LLC members (direct),
(6) conversion (derivative and direct), and (7) accounting

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(derivative and direct). Defendants answered and asserted eight
counterclaims against Briggs. 1

¶4 Defendants exercised their statutory right to request
creation of a special litigation committee to investigate Briggs’s
derivative claims. See Utah Code § 48-3a-805 (“If a limited liability
company is named as or made a party in a derivative proceeding,
the limited liability company may appoint a special litigation
committee to investigate the claims asserted in the proceeding
and determine whether pursuing the action is in the best interests
of the limited liability company.”). Rockwell appointed a certified
public accountant (Accountant) who has extensive experience in
investigative accounting, receiverships, and bankruptcy to serve
as the SLC. 2

¶5 In the report and statement of determination, the SLC, with
the assistance of special litigation counsel, concluded that
Defendants had committed the tort of conversion when they
transferred Rockwell’s assets to RTM. The SLC valued Rockwell’s
assets at the time of conversion at $212,000 and recommended that
the derivative claim associated with the conversion be “resolved
by payment to [Rockwell] of the required amount—here,
$212,000.” The SLC stated that because Rockwell was no longer
operating, the “appropriate result could be obtained simply by
netting out [Defendants’] interest and requiring payment to
[Briggs] by [Defendants] of $17,000 (eight percent of $212,000).”
The SLC also recommended that “the derivative claims based on
the alleged failure to provide initial capital contributions” be

1. Defendants’ counterclaims were ultimately dismissed, and that
decision is not at issue in this appeal.

2. The statute requires a special litigation committee to be
composed of “one or more disinterested and independent
individuals.” Utah Code § 48-3a-805(2). Here, the SLC was
composed of a single person, Accountant.

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dismissed, along with the accounting claim “to the extent” it was
derivative.

¶6 Defendants then moved to enforce the SLC’s
determination on Briggs’s derivative claims and for summary
judgment on Briggs’s direct claims. At a hearing on the motions,
both parties agreed the SLC met the statutory qualification
requirements, but Briggs argued the SLC “did not exercise
reasonable care in evaluating all the claims.” The district court
deferred ruling on Defendants’ motion to enforce pending an
evidentiary hearing on the narrow issue of whether the SLC
exercised reasonable care in its investigation.

¶7 The district court, however, granted summary judgment to
Defendants on all of Briggs’s direct claims based on Briggs’s
failure to produce “any affirmative evidence of direct and
individual damages to him as opposed to Rockwell.” The court
rejected Briggs’s contention that his failure to produce such
evidence was justified because he did not have access to RTM’s
records, stating that Briggs “has not cited any legal authority to
support his notion that as a non-member of this new limited
liability company, he would have some right to view its financial
records or receive an accounting” and “has not moved for a
continuance to conduct additional discovery under Rule 56(d).”

¶8 At the evidentiary hearing on the SLC’s investigation,
Accountant explained that he had considered interest on the
conversion claim and, after consulting with legal counsel for the
SLC, determined not to include interest. The court then ruled it
would enforce the SLC’s determination, specifically finding that
the SLC was “disinterested and independent” and had made its
“recommendation in good faith, independently and with
reasonable care.”

¶9 The court also held a hearing to consider whether attorney
fees should be awarded to any party and whether interest should

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be added to the $212,000 settlement. Briggs based his request for
attorney fees on three grounds: (1) Utah’s “substantial benefit”
doctrine, (2) Utah Code section 48-3a-806(2) (stating that “[i]f a
derivative action is successful in whole or in part, the court may
award the plaintiff reasonable expenses, including reasonable
attorney’s fees and costs, from the recovery of the limited liability
company”), and (3) Rockwell’s operating agreement, which states
that “[i]n the event that any action is filed in relation to this
Agreement, the unsuccessful party shall pay to the successful
party, as a part of any judgment or settlement, a reasonable sum
for the other party’s attorney’s fees.” Briggs, arguing that he and
Rockwell were “the only parties that have received any
judgment,” requested $47,060 in attorney fees and $2,367.77 in
costs, for a total of $49,427.77. Defendants contended that Briggs
could not be considered a prevailing party because his direct
claims were dismissed and the $212,000 awarded to Rockwell was
“not a win for Mr. Briggs” because it represented a settlement
amount, not a judgment. In response, Briggs urged the court to
use “common sense” and a “flexible and reasoned approach” to
determine which party prevailed.

¶10 A week later, the district court issued its written ruling and
denied both sides’ fee requests and the request for interest. On the
issue of attorney fees, the court concluded that “this case presents
what a true draw would look like” because “neither side achieved
their optimal outcome and their claims of victory ring hollow
given the procedural course that this action has taken and the final
Order that was entered.” The court was referring to the fact that
although Briggs won a $212,000 judgment for Rockwell, he also
diminished that award by “protracting the litigation.” Likewise,
although Defendants succeeded in having all of Briggs’s direct
claims dismissed, they had to pay a judgment to Rockwell on one
of Briggs’s derivative claims. On the issue of interest, the court
concluded that Briggs did not meet his “burden of proof in
establishing a right to interest either under a theory of

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prejudgment interest or as an inherent part of the conversion
claim.”

ISSUES AND STANDARDS OF REVIEW

¶11 Plaintiffs now appeal, raising three issues for our review.
First, Briggs challenges the district court’s dismissal of his direct
claims. When claims are “dismissed on the merits, as a matter of
law on summary judgment, we review the district court’s decision
for correctness, affording it no deference.” Chard v. Chard, 2019 UT
App 209, ¶ 30, 456 P.3d 776.

¶12 Second, Briggs and Rockwell challenge the district court’s
denial of interest on the conversion settlement. “A trial court’s
decision to grant or deny . . . interest presents a question of law
which we review for correctness.” Donatelli v. Beaumont, 2009 UT
App 34, ¶ 3, 204 P.3d 201 (cleaned up).

¶13 Third, Briggs challenges the district court’s attorney fees
ruling, which we review for abuse of discretion. See Olsen v. Lund,
2010 UT App 353, ¶ 5, 246 P.3d 521 (“Which party is the prevailing
party depends, to a large measure, on the context of each case,
and, therefore, it is appropriate to leave this determination to the
sound discretion of the trial court.” (cleaned up)).

ANALYSIS

¶14 For the reasons discussed herein, we hold that the court
correctly dismissed Briggs’s direct claims and correctly denied
interest on Rockwell’s conversion claim. However, we also hold
that because Rockwell was a prevailing party on Briggs’s
derivative claims, Briggs should have been awarded attorney fees
related to that claim, and we remand the matter with instruction
for the court to award them.

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I. Direct Claims

¶15 Briggs challenges the district court’s grant of summary
judgment to Defendants on his direct claims. The court’s decision
to dismiss those claims rested on Briggs’s failure to produce
evidence he had sustained individual damages separate and apart
from damages he suffered as a member of Rockwell.

¶16 A plaintiff can “withstand summary judgment only if it
provided evidence of both the fact and the amount of damages.”
Stevens-Henager Coll. v. Eagle Gate Coll., 2011 UT App 37, ¶ 23, 248
P.3d 1025; see also Giusti v. Sterling Wentworth Corp., 2009 UT 2,
¶ 62, 201 P.3d 966 (affirming summary judgment for the
defendant where the plaintiff failed to provide sufficient evidence
that he suffered damages). “To establish the fact of damages, the
evidence must give rise to a reasonable probability that the
plaintiff suffered damage.” Sleepy Holdings LLC v. Mountain W.
Title, 2016 UT App 62, ¶ 13, 370 P.3d 963 (cleaned up). To establish
the amount of damages, a party must present “evidence that rises
above speculation and provides a reasonable, even though not
necessarily precise, estimate of damages.” Id. (cleaned up). For
Briggs to show the fact of damages, he had to provide evidence of
“an injury to himself that is distinct from that suffered by the
corporation.” Torian v. Craig, 2012 UT 63, ¶ 16, 289 P.3d 479
(cleaned up).

¶17 Here, the district court correctly concluded that Briggs
“has not presented sufficient evidence of damages to overcome a
summary judgment motion.” The only evidence of individual
damages produced by Briggs was set forth in his initial damages
disclosure. In the disclosure, Briggs merely referenced his
complaint, stating that he “seek[s] recovery of damages for the
breaches and other improper acts of Defendants, as pled in the
First Amended Complaint,” and claiming that “a computation of
such damages will not be possible without further discovery.”

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Briggs never supplemented his disclosure, nor did he produce
any evidence of his individual damages.

¶18 Briggs cannot merely reference his complaint or aver that
his failure to disclose damages was justified because of
Defendants’ failure to provide discovery or an accounting. 3 A
plaintiff who complains of insufficient discovery as justification
for a failure to prove damages should invoke rule 56(d) of the
Utah Rules of Civil Procedure, which allows a party to move for
a continuance to conduct additional discovery: “If a nonmoving
party shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court
may . . . allow time to obtain affidavits or declarations or to take
discovery.” Utah R. Civ. P. 56(d). But Briggs failed to move for a
continuance to conduct additional discovery under this rule. As
the district court noted, “even if Briggs had an incomplete
financial picture of Rockwell, the fact of damages . . . and the
method for calculating the amount of damages must be apparent
in initial disclosures” and “[i]f the facts underlying the amount of
damages remained unclear, the burden was on Briggs to further
investigate or conduct discovery and to do so as early in the
litigation process as is practicable.” See Stevens-Henager Coll., 2011
UT App 37, ¶ 24.

¶19 Accordingly, the court correctly granted summary
judgment to Defendants on Briggs’s direct claims based on his
failure to prove damages.

3. As the district court noted, “Briggs has not cited any legal
authority to support his notion that as a non-member of this new
limited liability company [RTM], he would have some right to
view its financial records or to receive an accounting.”

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II. Interest on the Conversion Claim

¶20 Briggs argues that, as a matter of law, he and Rockwell are
entitled to interest on the derivative conversion claim. Because the
district court was enforcing a determination by the SLC, we must
first look to the governing statute on special litigation committees.
Utah Code section 48-3a-805 outlines the authority of both a
special litigation committee and the reviewing court. First, the
statute states that “[a]fter appropriate investigation” of a
derivative claim, a special litigation committee “may determine
that it is in the best interests of the limited liability company that
the proceeding . . . be settled on terms approved by the committee;
or be dismissed.” Utah Code § 48-3a-805(4)(c)–(d). The statute
then sets forth what happens once a special litigation committee
has concluded its investigation, filed the “statement of its
determination and its report” with the court, and “serve[d] each
party with a copy”:

The court shall determine whether the members of
the committee were disinterested and independent
and whether the committee conducted its
investigation and made its recommendation in good
faith, independently, and with reasonable care, with
the committee having the burden of proof. If the
court finds that the members of the committee were
disinterested and independent and that the
committee acted in good faith, independently, and
with reasonable care, the court shall enforce the
determination of the committee.

Id. § 48-3a-805(5).

¶21 Here, the parties agreed the SLC had conducted the
investigation in good faith and independently, but Briggs
disputed whether it was done with reasonable care with respect
to the conclusion that Rockwell was not entitled to interest on the

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conversion claim. The district court therefore held an evidentiary
hearing on the issue of whether the SLC exercised reasonable care
in its investigation.

¶22 At the hearing, Accountant explained that part of his task
as the SLC was to “make a recommendation to the Court in terms
of a settlement amount.” The SLC’s two alternative
recommendations for settlement of the conversion claim 4 were to
have Defendants either pay (1) $212,000 to Rockwell or (2) $17,000
to Briggs as his eight-percent share “because Rockwell is no
longer operating.”

¶23 The SLC’s determination regarding the conversion claim
not only included the recommended settlement amount of
$212,000, but also included a rejection of interest on that amount.
At the evidentiary hearing, Accountant was asked if he had
considered whether interest “should have been applied to the
$212,000 of conversion damages that [he] calculated.” In response,
Accountant testified that after consulting with legal counsel for
the SLC on the issue, he determined that the conversion damages
should not include any interest other than “post-judgment
interest after a judgment was entered.” According to its authority
to “determine that it is in the best interests of the limited liability
company” that the dispute “be settled on terms approved by the
committee,” see id. § 48-3a-805(4)(c), the SLC determined those
terms did not include interest.

¶24 The court then entered findings, which are not challenged
on appeal, that the SLC was “disinterested and independent” and
had made the “recommendation in good faith, independently and
with reasonable care.” After further briefing and oral argument,
the court denied the request for interest on the conversion claim

4. The SLC also recommended that the remaining derivative
claims be dismissed, and Briggs does not challenge that
recommendation on appeal.

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on the grounds that Briggs had “not met his burden of proof in
establishing a right to interest either under a theory of
prejudgment interest or as an inherent part of the conversion
claim.”

¶25 Briggs now challenges that ruling, asserting that the
district court should have awarded interest because a conversion
claim includes interest from the date of the conversion as a matter
of law. We agree with the district court’s denial of the request for
interest, albeit for a different reason. Okelberry v. West Daniels Land
Ass’n, 2005 UT App 327, ¶ 11, 120 P.3d 34 (“It is well established
that we may affirm the judgment appealed from if it is sustainable
on any legal ground or theory apparent on the record, even
though such ground or theory differs from that stated by the trial
court to be the basis of its ruling or action, and this is true even
though such ground or theory is not urged or argued on appeal
by appellee, was not raised in the lower court, and was not
considered or passed on by the lower court.” (cleaned up)).

¶26 The SLC’s determination that Defendants were not
required to pay interest on the conversion claim was part of its
recommended settlement pursuant to Utah Code section
48-3a-805(4)(c), and neither the district court nor this court is
empowered by the statute to review the propriety of that
settlement or change its terms. Indeed, the review of a special
litigation committee’s settlement determination is limited only to
whether the committee was “disinterested and independent and
whether the committee conducted its investigation and made its
recommendation in good faith, independently, and with
reasonable care.” Utah Code § 48-3a-805(5).

¶27 Once the district court found that the SLC met the statutory
conditions, the court was required to “enforce the determination
of the committee,” which did not include interest on the
conversion claim. See id. (stating that “the court shall enforce the
determination of the committee” (emphasis added)). Therefore,

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the court correctly denied the request for interest on the
conversion claim, and there was no error in the court’s decision to
enforce the SLC’s determination that the conversion claim be
settled by payment of $212,000, without interest.

III. Attorney Fees

¶28 Briggs also appeals the district court’s denial of his request
for attorney fees on his direct and derivative claims. Specifically,
Briggs contends he should have been awarded attorney fees on
three grounds: (1) Rockwell’s operating agreement, (2) Utah’s
“substantial benefit” doctrine, and (3) Utah Code section
48-3a-806(2). As explained below, Utah’s substantial benefit
doctrine has been incorporated into statute, so Briggs’s argument
rests, more accurately, on two grounds.

¶29 “In Utah, attorney fees are awardable only if authorized by
statute or by contract. If provided for by contract, the award of
attorney fees is allowed only in accordance with the terms of the
contract.” Airstar Corp. v. Keystone Aviation, LLC, 2022 UT App 73,
¶ 95, 514 P.3d 568 (cleaned up). Rockwell’s operating agreement
states, in part: “In the event that any action is filed in relation to
this Agreement, the unsuccessful party shall pay to the successful
party, as a part of any judgment or settlement, a reasonable sum
for the other party’s attorney’s fees.” Defendants claim that
Rockwell’s operating agreement does not provide a basis for
Briggs’s attorney fees because “Briggs was not a sufficiently
successful or prevailing party.” We agree. At best, this was a draw
for Briggs where all of his direct claims were dismissed by the
district court on summary judgment, but where he successfully
defended against Defendants’ counterclaims. That said, we note
the distinction between Briggs’s direct claims on his own behalf
and Briggs’s derivative claims on behalf of Rockwell. Whether
Briggs—who obtained a settlement payment of $212,000 to
Rockwell on his derivative claims—is a prevailing party on the

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derivative claims presents a closer call and requires us to look to
the statute for guidance.

¶30 Our supreme court has explained that the statute
governing attorney fees in cases involving derivative claims stems
from Utah’s “substantial benefit” doctrine, which “generally
grants attorney fees to derivative plaintiffs who succeed in the
action and confer a substantial benefit on the entity on whose
behalf they sued.” Gold’s Gym Int’l, Inc. v. Chamberlain, 2020 UT 20,
¶ 31, 471 P.3d 170. “The Utah Legislature has incorporated this
principle into . . . Utah’s Revised Uniform Limited Liability
Company Act [which] states that ‘if a derivative action is
successful in whole or in part, the court may award the plaintiff
reasonable expenses, including reasonable attorney’s fees and
costs, from the recovery of the limited liability company.’” Id.
(quoting Utah Code § 48-3a-806(2)).

¶31 In close cases, the “focus is on which party had attained a
comparative victory, considering what a total victory would have
meant for each party and what a true draw would look like.”
Fisher v. Davidhizar, 2021 UT App 38, ¶ 30, 491 P.3d 110 (cleaned
up). Here, the district court concluded this case amounts to “a true
draw” because “neither side achieved their optimal outcome,”
their “claims of victory ring hollow given the procedural course,”
and “neither side prevailed sufficiently to justify an award of
fees.” On the one hand, Briggs obtained a $212,000 settlement 5 for
Rockwell on his derivative claim for conversion, but on the other
hand, Defendants were granted summary judgment on his other
derivative claims.

5. Defendants contend that “Briggs cannot be considered a
prevailing party with a judgment in his favor” because the
$212,000 was a settlement, not a judgment. We disagree. Utah
Code section 48-3a-806(2) authorizes attorney fees “[i]f a
derivative action is successful in whole or in part.”

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¶32 This case was submitted as a Tier 2 case, placing the
potential damages in the realm of “[m]ore than $50,000 and less
than $300,000.” See Utah R. Civ. P. 26(c)(5); see also Express Recovery
Servs. Inc. v. Olson, 2017 UT App 71, ¶ 10, 397 P.3d 792 (stating
that under the “net judgment rule,” “the party in whose favor the
net judgment is entered must be considered the prevailing party”
but that “the net judgment rule is a starting point [and] the court
should also consider common sense factors” (cleaned up)).
Although some of the derivative claims were dismissed, Briggs
obtained a recovery of $212,000 for Rockwell on the derivative
conversion claim, thereby obtaining seventy percent of the
maximum amount of $299,999. And comparatively speaking, this
resulted in a victory for Briggs on behalf of Rockwell. 6 This
“substantial benefit” for Rockwell leads us to the conclusion that
Briggs—as a derivative plaintiff for Rockwell—was a prevailing
party pursuant to the statute and the district court abused its
discretion when it concluded otherwise.

¶33 On remand, however, Briggs must allocate his requested
attorney fees between those claims that were successful and those
that were unsuccessful. See Prince v. Bear River Mut. Ins. Co., 2002
UT 68, ¶¶ 52–57, 56 P.3d 524. “[T]he party 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 an entitlement to attorney fees had
the claims been successful, and (3) claims for which there is no
entitlement to attorney fees.” Id. ¶ 56 (cleaned up). “A party who
requests an award of attorney fees has the burden of presenting

6. Whether “the litigation ultimately proved worthwhile is not the
standard for determining the prevailing party for purposes of a
fee award. None of our cases weigh the result achieved . . . against
the sacrifice in time, trouble, and expense required to attain that
result.” Olsen v. Lund, 2010 UT App 353, ¶ 12, 246 P.3d 521
(cleaned up).

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evidence sufficient to support an award.” KB Squared LLC v.
Memorial Bldg. LLC, 2019 UT App 61, ¶ 31, 442 P.3d 1168 (cleaned
up). Part of that burden is the allocation of the fees. “In order to
recover any attorney fees at all, the prevailing party must
apportion or separate out the recoverable fees from the
nonrecoverable ones.” Eggett v. Wasatch Energy Corp., 2004 UT 28,
¶ 36, 94 P.3d 193.

¶34 This allocation requirement ensures there is sufficient
evidence for the district court to consider. See Jensen v. Sawyers,
2005 UT 81, ¶ 132, 130 P.3d 325 (stating that failure to allocate fees
among successful claims, unsuccessful claims, and claims to
which there is no entitlement to attorney fees “makes it difficult,
if not impossible, for the trial court to award the moving party
fees because there is insufficient evidence to support the award”).
Accordingly, on remand Briggs must allocate the attorney fees he
seeks, differentiating between fees incurred on the unsuccessful
direct and derivative claims and those incurred on the conversion
claim that succeeded.

CONCLUSION

¶35 We affirm the rulings of the district court on the interest
and direct claims issues. We remand this matter, however, on the
issue of attorney fees and instruct the court to reconsider Briggs’s
fee request after he has satisfied the fee allocation requirements.

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