Weber v. Mikarose, LLC

2015 UT App 130

THE UTAH COURT OF APPEALS

TIFFANY WEBER,
Plaintiff and Appellee,
v.
MIKAROSE, LLC AND BRAD LAWSON,
Defendants and Appellants.

Memorandum Decision
No. 20140415-CA
Filed May 21, 2015

Fourth District Court, American Fork Department
The Honorable Christine S. Johnson
No. 130100161

Adam G. Clark and Andrew W. Stavros, Attorneys
for Appellants
Robert C. Avery and Nathan E. Burdsal, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.

DAVIS, Judge:

¶1 Mikarose, LLC and Brad Lawson (collectively, Employer)
appeal the trial court’s grant of attorney fees to Tiffany Weber
and the trial court’s denial of two rule 60(b) motions for relief.
We affirm.
Weber v. Mikarose, LLC

I. Attorney Fees

¶2 First, Employer argues that the attorney fee award is in
violation of the Fair Labor Standards Act (FLSA).1 The FLSA
requires a trial court to award reasonable attorney fees and costs
“in addition to any judgment awarded to the plaintiff . . . to be
paid by the defendant.” 29 U.S.C. § 216(b), declared
unconstitutional by Michigan Corr. Org. v. Michigan Dep’t of Corr.,
774 F.3d 895 (6th Cir. 2014). Employer argues that the award of
$37,717.50 in attorney fees is unreasonable, particularly because
Employer has never denied liability for Weber’s unpaid
overtime wages and the amount of overtime wages in dispute
was no more than $2,000.

¶3 “*T+he district court has broad discretion in determining
what constitutes a reasonable [attorney] fee, and we will
consider that determination against an abuse-of-discretion
standard.” Redd v. Hill, 2013 UT 35, ¶ 15, 304 P.3d 861 (citation
and internal quotation marks omitted). “*A+n award of attorney
fees must be supported by evidence in the record.” Dixie State
Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988); id. at 989–90
(listing various considerations a court may take into account in
determining the reasonableness of an attorney fee award).

¶4 First, Employer suggests that the fees awarded are
unreasonable because of the vast difference between the amount

1. Employer’s brief on appeal was drafted by Lawson pro se and
is difficult to understand. Thus, to the extent this decision does
not address issues that Lawson believed he raised on appeal, we
deem those issues inadequately briefed. See Utah R. App. P.
24(a)(9). The attorneys on appeal for both Lawson and Mikarose
made their appearance after Lawson had filed his pro se opening
brief, and this court permitted counsel to ratify the brief with
respect to Mikarose, but prohibited counsel from substantively
amending it.

20140415-CA 2 2015 UT App 130
Weber v. Mikarose, LLC

of fees awarded and the amount in controversy. “*A+lthough the
amount in controversy can be a factor in determining a
reasonable fee,” that amount is not necessarily reliable, because,
for example, it often takes an attorney roughly “the same
amount of time to collect a note in the amount of $1,000 as it
takes to collect a note for $100,000.” Id. at 990. In other words,
“*t+he amount of the damages awarded in a case does not place a
necessary limit on the amount of attorneys fees that can be
awarded.” Id. (citation and internal quotation marks omitted).
Employer has not demonstrated why this general principle
should not apply here. Accordingly, we reject Employer’s
assertion that the fee award is unreasonable because it is
significantly larger than the amount in controversy.

¶5 Next, Employer argues that the fees awarded were
unreasonable because the case was uncomplicated in light of the
fact that Employer never denied liability and the only issue was
how much overtime pay Employer owed Weber. The trial court
recognized that the issues raised in Weber’s original complaint
“were not novel or complex.” However, the court explained,
“The only reason the attorney fees are high is because *Weber+
was required to seek orders to compel discovery and to respond
to *Employer’s+ seemingly endless salvo of motions.” The court
recognized that Employer had “the right to file the motions that
*it+ did and argue them in court” but noted that as a consequence
of exercising that right, Employer “prolonged this litigation and
ran up the fees.” The court acknowledged that it would have
exercised its discretion to reduce the fee award “had the tables
been reversed,” i.e., had Weber expended a significant amount
of time “filing endless, unnecessary motions.” The court
concluded, however, that such an exercise of discretion was not
appropriate here, where Employer “has created the unpleasant
situation which *it+ now finds *itself+ in.” Employer has not
persuaded us that the trial court abused its discretion in reaching
this conclusion.

20140415-CA 3 2015 UT App 130
Weber v. Mikarose, LLC

¶6 Employer also suggested to the trial court that some of the
particular charges included in the attorney fee award were
unreasonable, and on appeal, Employer challenges several
specific items billed by Weber’s attorney.2 These specific
challenges were not presented to the trial court in a manner in
which it could rule on them; indeed, the trial court stated,
without objection, at the March 28, 2014 hearing on attorney fees
that Employer “does not contest the work that has been
performed” and “does not contest the rate of Plaintiff’s
Counsel.” “As a general rule, claims not raised before the trial
court may not be raised on appeal.” State v. Holgate, 2000 UT 74,
¶ 11, 10 P.3d 346 (explaining the preservation rule). These
challenges are not preserved for appeal, and we decline to
address them further.

II. Attorney Fees as a Discovery Sanction

¶7 Next, Employer argues that the trial court abused its
discretion in awarding attorney fees as “sanctions” because the
court did not make the necessary findings to support a sanction
in its Order to Compel Discovery (the Order to Compel).3

2. Employer specifically challenges as unreasonable a charge of
$2,000 for work done to prepare a summary judgment motion
and memorandum that was never filed, $4,097.50 for a motion
for sanctions that was denied, $3,245 for an “almost identical
[second+ motion” for sanctions, and $770 for administrative tasks
such as copying and mailing documents.

3. Employer also argues that the trial court failed to comply with
rule 4-502(2)(E) of the Utah Rules of Judicial Administration
when it entered the Order to Compel without explicitly
determining that a telephone conference with the parties was
unnecessary. See Utah R. Jud. Admin. 4-502(2)(E). Rule 4-
502(2)(E) states, “The court reserves the right to decide the
(continued…)

20140415-CA 4 2015 UT App 130
Weber v. Mikarose, LLC

¶8 In the Order to Compel, the trial court ordered Employer
to pay Weber’s “reasonable attorney’s fees and costs associated
with preparing and filing *her+ Statement of Discovery Issues.”
Rule 37 of the Utah Rules of Civil Procedure authorizes a trial
court to order a party against whom a motion to compel is
granted to “pay the reasonable expenses and attorney fees
incurred on account of the motion if the court finds that the
party . . . did not act in good faith or asserted a position that was
not substantially justified.” Utah R. Civ. P. 37(d). The trial court
made no such finding before requiring Employer to pay Weber’s
attorney fees and costs related to the Order to Compel. However,
“such failure is not grounds for reversal if a full understanding
of the issues on appeal can nevertheless be determined by the
appellate court.” Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 962
(Utah Ct. App. 1989) (citation and internal quotation marks
omitted); accord Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82,
¶ 29, 199 P.3d 957.

¶9 Here, in the court’s subsequent order imposing a default
judgment against Employer as an additional discovery sanction,
the court explained that Employer “failed to provide responses
to *Weber’s] written discovery requests within the time
prescribed under the rules,” that Weber “properly contacted
[Employer] in a good faith attempt to resolve the issues in
accordance with Rule 4-502(2)(A)” of the Utah Rules of Judicial
Administration, and that “[w]hen that good faith attempt failed

(…continued)
issue(s) without a telephone conference if it determines that a
conference is unnecessary . . . .” Id. Employer raised other
challenges under rule 4-502 in its filings opposing the Order to
Compel, primarily on good faith grounds, see id. R. 4-502(2)(A),
but Employer never raised a challenge under rule 4-502(2)(E)
below. Accordingly, this argument is not preserved and we do
not address it further. See State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346.

20140415-CA 5 2015 UT App 130
Weber v. Mikarose, LLC

to resolve the issues, [Weber] properly filed her Statement of
Discovery [I]ssues in compliance with the provisions of Rule 4-
502.” Employer “did not object to *Weber’s+ Statement of
Discovery Issues,” and in turn, the trial court entered an Order
to Compel Discovery. The court described Employer as having
“willfully withheld” and “outright refused” to supply the
requested discovery materials throughout the proceedings.
There is no question that Employer failed to provide the
requested electronic discovery materials, and the record clearly
indicates that Employer has maintained the attitude that it
needed to provide only the discovery materials it deemed
relevant to Weber’s claim. In light of this evidence of Employer’s
lack of good faith, the trial court’s failure to make the relevant
specific finding to support its order that Employer pay Weber’s
attorney fees and costs incurred in securing the Order to Compel
is not a reversible error. See Amica Mut., 768 P.2d at 962.
Accordingly, we affirm the trial court’s decision to impose
attorney fees and costs against Employer in the Order to
Compel.

¶10 Employer also argues that the trial court improperly
granted the Order to Compel because Weber’s discovery request
for “all electronic documents and spreadsheets” was not
reasonable or proportional under rule 26(b)(2) of the Utah Rules
of Civil Procedure. Because Employer did not challenge Weber’s
discovery request or Statement of Discovery Issues as overbroad,
the trial court granted the Order to Compel, certifying Weber’s
request as reasonable and compliant with the relevant rules. It
was not until after the court issued the Order to Compel, during
a hearing on several of Employer’s subsequent motions, that
Employer expressed its mistaken belief that it need not file a
protective order because rule 26 “guaranteed” its rights against
overbroad discovery requests by requiring Weber “to show
relevance” and proportionality. The trial court explained that
Employer was, in fact, required to respond to Weber’s request
for discovery in order to properly raise its concerns about
proportionality and that it should not “assume that for some

20140415-CA 6 2015 UT App 130
Weber v. Mikarose, LLC

reason [the court is] going to make the argument against the
discovery being offered.” The court indicated that when it
receives an unopposed “statement of discovery issues from
either party representing that the information sought is relevant”
and “proportional,” the court “is going to assume that the
information is relevant and proportional.” The trial court
concluded that Employer’s challenge to the proportionality of
the request was untimely and therefore waived. We see no abuse
of discretion in this regard and do not address the issue further.

III. Rule 60(b) Motions

¶11 Finally, Employer argues that the trial court abused its
discretion by denying Employer’s rule 60(b) motion on the basis
that Lawson failed to demonstrate excusable neglect or a
meritorious defense. “A district court has broad discretion to
rule on a motion to set aside a . . . judgment under rule 60(b),”
and “we review a district court’s denial of a *rule+ 60(b) motion
under an abuse of discretion standard of review.” Bodell Constr.
Co. v. Robbins, 2014 UT App 203, ¶ 5, 334 P.3d 1004 (alteration in
original) (citation and internal quotation marks omitted). In this
context, “*w+e review a district court’s findings of fact under a
clear error standard of review, while [w]e review a district
court’s conclusions of law for correctness, affording the trial
court no deference.” Id. (alterations in original) (citation and
internal quotation marks omitted). “In addition, we note that our
review of a district court’s rule 60(b) order is limited in scope
because such an appeal must only address the propriety of the
denial or grant of relief, not the correctness of the underlying
judgment.” Id. (citation and internal quotation marks omitted).

¶12 To set aside a judgment pursuant to rule 60(b), the
moving party must “show that the judgment was entered
against him through excusable neglect (or any other reason
specified in rule 60(b)),” and “he must also show that his motion
to set aside the judgment was timely, and that he has a
meritorious defense to the action.” Erickson v. Schenkers Int'l

20140415-CA 7 2015 UT App 130
Weber v. Mikarose, LLC

Forwarders, Inc., 882 P.2d 1147, 1148 (Utah 1994) (citation and
internal quotation marks omitted); see also Utah R. Civ. P.
60(b)(1) (permitting a judgment to be set aside on the basis of
“mistake, inadvertence, surprise, or excusable neglect”).

¶13 Here, Employer asserted that its failure to respond to the
Statement of Discovery Issues should be excused because at the
time Weber filed the Statement, Lawson, who represented
himself pro se, and his wife were out of the state, meaning there
was “no one authorized to open the mail.” In other words,
Employer did not learn that Weber had filed the Statement of
Discovery Issues until after the trial court issued its Order to
Compel. In ruling on Employer’s rule 60(b) motions, the trial
court held that Employer “demonstrated no diligence at all” by
leaving “the state during the discovery period without
designating anyone to check a message or open an envelope.”
Because the trial court concluded that Employer failed to make
even “some effort,” the court denied its rule 60(b) motions.4

¶14 The trial court did not abuse its discretion in reaching this
conclusion. “*D+iligence on the part of the party claiming
excusable neglect is an essential element of that inquiry, and
relief may not be granted based on other equitable
considerations where a party has exercised no diligence at all.”
Bodell, 2014 UT App 203, ¶ 10 (citation and internal quotation
marks omitted). While representing himself pro se, Lawson left
the state during the discovery period and did not designate

4. In ruling on Employer’s first rule 60(b) motion, the court also
determined that Employer’s defense that Weber did not comply
with rule 4-502 before filing the Statement was without merit
because Weber’s request did conform to the relevant rules.
However, in ruling on Employer’s second rule 60(b) motion, the
court did not reach that prong of the rule 60(b) inquiry in light of
its conclusion that Employer failed to demonstrate excusable
neglect.

20140415-CA 8 2015 UT App 130
Weber v. Mikarose, LLC

anyone to check his messages or open envelopes sent by
opposing counsel. We agree that this behavior does not
constitute diligence. Accordingly, the trial court did not abuse its
discretion in denying Employer’s rule 60(b) motions.

IV. Conclusion

¶15 We affirm the trial court’s award of attorney fees under
the FLSA, its imposition of attorney fees as a discovery sanction,
and its denials of Employer’s rule 60(b) motions. Because Weber
was awarded fees below under the FLSA, has prevailed on
appeal, and has requested fees on appeal, we remand to the trial
court for the limited purpose of awarding fees reasonably
incurred on appeal. See Valcarce v. Fitzgerald, 961 P.2d 305, 319
(Utah 1998) (“This court has interpreted attorney fee statutes
broadly so as to award attorney fees on appeal where a statute
initially authorizes them. In addition, when a party who
received attorney fees below prevails on appeal, the party is also
entitled to fees reasonably incurred on appeal.” (citation and
internal quotation marks omitted)).

20140415-CA 9 2015 UT App 130