Raass Brothers Inc v. Raass , 2019 UT App 183 ( 2019 )

2019 UT App 183THE UTAH COURT OF APPEALS
RAASS BROTHERS INC.,
Appellant,
v.
SUMMER RAASS AND J&M RENTALS LLC,
Appellees.
Opinion
No. 20180356-CA
Filed November 15, 2019
Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 170401107
Brinton M. Wilkins, Attorney for Appellant
Elaina M. Maragakis and Aaron C. Hinton,
Attorneys for Appellees
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 After months of frustrating and futile attempts to obtain
complete responses to discovery requests, Summer Raass and
J&M Rentals LLC (often collectively referred to herein as
Summer 1) filed a motion asking the district court to sanction
Raass Brothers Inc. (RBI). The district court held a three-day
evidentiary hearing on Summer’s motion, followed by a full day
of oral argument, and concluded that RBI had acted
1. “As is our practice in cases where [relevant individuals] share
a last name, we refer to the parties by their first name with no
disrespect intended by the apparent informality.” Smith v. Smith,
2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
Raass Brothers Inc. v. Raass
inappropriately, and that, as a sanction, it should pay Summer
the attorney fees she incurred in bringing the sanctions
motion and participating in the evidentiary hearing. Shortly
thereafter, following additional litigation over the appropriate
amount, the district court determined that Summer had
reasonably incurred $235,286.73 in attorney fees and costs
related to the motion and hearing. RBI appeals, asserting that the
district court abused its discretion by concluding that RBI’s
behavior warranted sanction and in its calculation of
“reasonable” attorney fees. We affirm.
BACKGROUND
¶2 RBI is a construction business that, prior to late 2015, was
jointly owned and operated by Summer’s then-husband Stan
Raass and his brother John. In August 2015, Summer filed for
divorce. Shortly thereafter, Stan confessed to John that he and
Summer had been embezzling RBI’s corporate funds for
personal use. Following Stan’s confession, John and RBI entered
into an agreement with Stan whereunder Stan agreed, among
other things, to surrender his ownership interest in the company,
and RBI agreed not to sue Stan. However, the agreement did not
preclude further action against Summer, and in October 2015
RBI sued Summer, stating claims for theft and conversion and
alleging that Summer “misappropriated funds from RBI for her
personal use.”
¶3 After responding to RBI’s complaint, Summer served RBI
with multiple written discovery requests, and sent separate
subpoenas to Stan and RBI’s office manager (Manager). Among
other things, Summer asked RBI to “[p]roduce all documents in
[RBI’s] possession, custody, or control” showing the following:
“gross receipts” (Request 3); “financial statements, balance
sheets, income statements, tax filings, and loan applications”
(Request 8); “documents . . . showing compensation, draws,
distributions, expenditures or bonuses made to . . . any of the
20180356-CA 2 2019 UT App 183Raass Brothers Inc. v. Raass
officers, directors or shareholders of RBI” (Request 9); and
contracts “to provide labor or services” to “any federal, state, or
local government” (Request 10).
¶4 Following these requests, Summer became aware that RBI
was required to submit certain forms (SBA Forms) to the federal
Small Business Association each year, the content of which was
at least partially responsive to Requests 3, 8, and 9. In addition,
Summer was dissatisfied with RBI’s production of its job files
related to TKL Construction (TKL Job Files), which files Summer
believed contained information responsive to Requests 3 and 10.
In an attempt to obtain RBI’s SBA Forms as well as complete
TKL Job Files, Summer engaged in substantial meet-and-confer
efforts with RBI, including five separate communications (two
face-to-face and three written). Even after meeting and
conferring, however, Summer’s concerns were not assuaged.
¶5 Summer then submitted two statements of discovery
issues (SDIs) to the district court, seeking an order compelling
RBI to produce copies of all of its SBA Forms and all of the TKL
Job Files. The district court made a ruling favorable to Summer
on her SDIs, entering a written order to that effect on March 1,
2017 (March 1 Order). The March 1 Order provided that, within
thirty days, RBI must “fully comply with Requests 3, 8, and 9” of
Summer’s requests for production of documents, “including by
producing copies of all [SBA Forms] . . . in [its] possession,
custody or control, regardless of the current location or the form
or medium in which they are stored.” In addition, the court
ordered that RBI must “fully comply with Requests 3 and 10,”
“including by producing complete copies of all TKL job files in
its possession, custody or control.”
¶6 A few weeks later, RBI certified that it had complied with
the March 1 Order. Summer disagreed with that
characterization, however, and filed a motion for sanctions,
pursuant to rule 37(b) of the Utah Rules of Civil Procedure,
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alleging that RBI had failed to comply with the March 1 Order.
Summer also asked the court to schedule an evidentiary hearing
on the issue, and the court granted that request.
¶7 Although the hearing was originally scheduled for just
one day, the parties were unable to fully present their evidence
in that time span, and the court ended up taking three full days
to hear from the parties’ witnesses. After the hearing, the court
asked the parties to provide supplemental briefing, and after
considering that briefing, the court entertained a full day of oral
argument on the motion for sanctions.
¶8 About a week after oral argument, the district court
issued an eleven-page written ruling (Sanctions Order) granting
Summer’s motion. Among other findings, the court determined
that RBI “failed to provide” to Summer documents that it had
been ordered to produce, including “all [TKL] job files,” “profit
allocation information,” “budget variance sheets,” and SBA
Forms. It also concluded that the SBA Forms “filed by RBI and
currently kept by the Small Business Administration are within
the custody or control of RBI and must be procured and
produced by RBI.” In addition, the court found that RBI was “at
fault for failing to properly comply with [its] discovery
obligations,” and that it had “engaged in persistent dilatory
tactics.” While the court declined Summer’s invitation to impose
more severe sanctions (for instance, dismissing RBI’s lawsuit), it
held RBI, Stan, and Manager in contempt of court, and ordered
them to produce a number of specific documents, including all
TKL Job Files and SBA Forms, within sixty days. In addition, it
ordered RBI “to pay all costs and attorney fees incurred by
[Summer] in prosecuting” the motion for sanctions, “obtaining
the discovery items referenced” in the Sanctions Order, and
“securing full compliance with this order.”
¶9 Soon after the court issued its ruling, Summer filed
affidavits regarding attorney fees and costs, requesting that the
20180356-CA 4 2019 UT App 183Raass Brothers Inc. v. Raass
court order RBI to pay Summer a total of $343,590.12.
RBI objected, asserting that the amount of fees requested
was unreasonable. In particular, RBI argued that Summer
should not be able to recover any fees incurred prior to March
17, 2017, the first date on which work relating to the motion for
sanctions began. Moreover, it argued that Summer’s attorneys
often had two attorneys perform work that could have been
handled by just one, and asserted that certain billing entries
included in the request were unrelated to the motion for
sanctions or were unduly vague. After reviewing Summer’s fee
affidavit and RBI’s objection, the court agreed with many of
RBI’s arguments, and awarded Summer an amount of fees and
costs—$235,286.73—that was more than 30% less than what had
been requested.
¶10 In response to the Sanctions Order, RBI produced to
Summer “114 gigabytes” of electronic documents. Summer
claims that, because of time and financial constraints associated
with sifting through such a large amount of data, she was unable
to complete a comprehensive review of the newly-produced
information, 2 but asserts that even a limited review of the
documents uncovered “valuable information relevant to” her
defenses, including “evidence of what [she] believed existed all
along: an alternative set of accounting books.” In addition, at
oral argument before this court, Summer represented that the
post-Sanctions Order production included at least one TKL Job
File that had not been previously produced.
2. In fact, Summer filed a second motion for sanctions on this
ground, arguing that RBI had overcorrected, and instead of
producing too few documents, it was now producing too many.
The district court denied Summer’s second motion, concluding
that RBI’s conduct was not egregious enough to justify
additional sanctions.
20180356-CA 5 2019 UT App 183Raass Brothers Inc. v. Raass
ISSUES AND STANDARDS OF REVIEW
¶11 RBI now appeals, and asks us to consider two issues.
First, RBI contends that the district court abused its discretion by
entering sanctions against it for discovery violations. An
appellate court’s “review of a district court’s imposition of
sanctions follows a two-step process.” Kilpatrick v. Bullough
Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957. First, we must
“ensure that the district court has made a factual finding that the
party’s behavior merits sanctions,” and we disturb such findings
only if “there was no evidentiary basis for the [district] court’s
ruling.” Id. Second, we review the district court’s overall
sanctions ruling for abuse of discretion, disturbing it only “if
abuse of discretion is clearly shown.” Id. (quotation simplified).
Such abuse of discretion “may be demonstrated by showing that
the district court relied on an erroneous conclusion of law or that
there was no evidentiary basis for the [district] court’s ruling.”
Id. (quotation simplified). In general, “district courts are granted
a great deal of deference in selecting discovery sanctions,” and
this “deferential review recognizes that [district] courts must
deal first hand with the parties and the discovery process.” Id.(quotation simplified).
¶12 Second, RBI contends that the amount of fees and costs
awarded by the district court is unreasonable. “Calculation of
reasonable attorney fees is in the sound discretion of the
[district] court and will not be overturned in the absence of a
showing of a clear abuse of discretion.” Dixie State Bank v.
Bracken, 764 P.2d 985, 988 (Utah 1988) (quotation simplified).
ANALYSIS
I
¶13 RBI first challenges the district court’s award of discovery
sanctions, asserting that RBI’s actions do not merit sanctions
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because “RBI complied with its discovery obligations” and “RBI
did not spoliate any evidence.”
¶14 Summer’s motion for sanctions invoked rule 37(b) of the
Utah Rules of Civil Procedure. That rule confers on district
courts the power to “impose appropriate sanctions for the failure
to follow its [discovery] orders.” Utah R. Civ. P. 37(b).
Accordingly, the initial step in any sanctions proceeding that
invokes rule 37(b) is to determine whether the party has in fact
violated an order of the court. In this case, the specific order at
issue is the March 1 Order, in which the district court made a
ruling favorable to Summer on her two SDIs, and ordered RBI
not only to “fully comply with” Requests 3, 8, 9, and 10, but also
to produce all TKL Job Files and SBA Forms that were within its
“possession, custody, or control.”
¶15 After hearing evidence for three days, the district court
concluded that RBI had indeed failed to comply with its March 1
Order. The court specifically found that RBI had failed to
produce fourteen separate electronic TKL Job Files, as well as six
hard-copy TKL Job Files, and that its production of many other
TKL Job Files had been either incomplete or untimely. The court
also found that RBI had produced only two (out of many) SBA
Forms and had failed to request copies of those forms from the
SBA. Additionally, the court found that RBI had made only a
partial production of its bank statements, and had failed to
produce any profit allocation statements or budget variance
sheets. The court therefore made factual findings that RBI had
violated its March 1 Order in numerous ways.
¶16 And we conclude that ample evidence supported these
factual findings. With regard to the TKL Job Files, the March 1
Order did spur RBI to produce another eighty-four files—a
substantial increase over the thirty-seven produced prior to the
March 1 Order. But the district court found even this additional
production to be incomplete, and that finding is supported by
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evidence in the record. RBI’s main defense on this point is that it
produced all the TKL Job Files that it had, and that the rest of
them were old and had been lost or destroyed. RBI maintains—
correctly—that it is under no obligation to produce documents
that no longer exist, see, e.g., Shcherbakovskiy v. Da Capo Al Fine,
Ltd., 490 F.3d 130, 138 (2d Cir. 2007) (“[A] party is not obliged to
produce, at the risk of sanctions, documents that it does not
possess or cannot obtain.”), and that it cannot be sanctioned for
failing to produce such documents absent a finding of spoliation,
which finding the district court did not make. But the district
court did not need to make a finding of spoliation in order to
determine that RBI had failed to comply with its March 1 Order
to produce the TKL Job Files. For instance, RBI produced an
additional seventy-three files in June 2017, after the motion for
sanctions had been filed, and well after the deadlines set forth in
the March 1 Order. These documents clearly existed, but were
produced after the deadline imposed by the court, and after
Summer had gone to the expense of filing yet another motion to
compel their production. Moreover, apparently at least one
never-before-produced job file was finally handed over in early
2018, after entry of the Sanctions Order, lending additional
support to the notion that unproduced TKL Job Files still exist.
In light of the aforementioned evidence, the district court’s
determination that RBI violated the March 1 Order with regard
to the TKL Job Files was supported by the record.
¶17 With regard to the SBA Forms, RBI produced one SBA
Form within the deadline imposed by the court in the March 1
Order, but contends that it no longer possesses copies of any
other of its SBA Forms. Moreover, RBI refused to request copies
of those documents from the SBA, viewing that as Summer’s
responsibility. At one point during the discovery process,
Summer made efforts to obtain copies of the forms directly from
the SBA, but because the records were not hers, the SBA would
give her only redacted copies; Summer was told that unredacted
copies may be requested only by the owner of the records.
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Under these circumstances, we agree with Summer that the
unredacted SBA Forms are uniquely within RBI’s control. See
Utah R. Civ. P. 34(a)(1) (allowing litigants to request documents
from opposing parties when those documents are within the
opposing party’s “possession or control”). Especially in today’s
world of cloud-based server storage, a party need not have a
document in its actual physical possession in order for the
document to be deemed within the party’s control. See Wilson v.
Wright, 30 P. 754, 755 (Utah Terr. 1892) (“If a party has the legal
right to the possession of a document, in a legal sense it is within
his control, though he may have left it with an agent or other
person, from whom he has a right to receive it by demanding its
possession.”); Tuck v. Godfrey, 1999 UT App 127, ¶ 26 n.5, 981
P.2d 407 (recognizing that a party “had actual control of the
[documents] in that he could, and did, direct [an individual] to
find them”); see also Shcherbakovskiy, 490 F.3d at 138 (analyzing
analogous federal rules, and stating that, where a responding
party’s documents reside with a third party, the responding
party may be required to obtain them from the custodian, at
least where the requesting party is unable as a practical matter to
obtain them directly by subpoena); Prokosch v. Catalina Lighting,
Inc., 193 F.R.D. 633, 636 (D. Minn. 2000) (stating that, under
analogous federal rules, “documents are considered to be under
a party’s control when that party has the right, authority, or
practical ability, to obtain the documents from a non-party to the
action” (quotation simplified)). Because RBI was able to obtain
unredacted copies of its own SBA Forms through a simple
request, the unredacted forms were within RBI’s control, and
because Summer was unable to obtain unredacted copies of
those documents through a third-party subpoena, RBI was
required to obtain and produce them. It is undisputed that RBI
did not do so, and therefore sufficient evidence supports the
district court’s finding regarding the SBA Forms.
¶18 And with regard to the other accounting and financial
records discussed in the Sanctions Order, there is evidence that
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RBI failed to produce existing documents within its possession
and control that it had been ordered to produce pursuant to the
March 1 Order. In that order, the court ordered RBI to fully
comply with a number of Summer’s discovery requests, which
included the production of all accounting and financial records,
including alternative accounting documents, profit allocation
statements, and budget variance spreadsheets. Prior to entry of
the March 1 Order, RBI produced what it maintains is “a full
electronic copy of its QuickBooks records.” However, based on
evidence presented at trial, the court found that, “for a number
of job files, there are numerous alternative and inconsistent
versions of financial accountings” that had not been produced.
This finding was clearly supported by record evidence. Among
other things, the court heard testimony from Manager that, for a
number of job files, RBI had generated multiple accountings, not
all of which had been included in the initial production. This
testimony was further corroborated by Summer’s description of
the documents produced in the “114 gigabytes” production after
the Sanctions Order, which documents apparently included
some alternative accounting documents that had not previously
been produced. Moreover, the court’s finding that RBI had failed
to produce its profit allocation statements was based on Stan’s
deposition testimony that such documents existed and that he
would provide them to Summer. Finally, the court’s finding that
RBI had failed to produce its budget variance spreadsheets was
based on testimony from John and other RBI employees that
“RBI had a longstanding practice of creating monthly” budget
variance spreadsheets. Accordingly, the district court’s factual
finding that its March 1 Order had been violated was supported
by competent evidence.
¶19 The second step in a rule 37(b) sanctions proceeding—
after determining that an order of the court has been violated—is
to determine whether the violation is severe enough to warrant
the imposition of sanctions. Our supreme court has stated that,
“[b]efore a [district] court can impose discovery sanctions under
20180356-CA 10 2019 UT App 183Raass Brothers Inc. v. Raass
rule 37,” it must make a factual finding that the non-compliant
party’s actions fall into at least one of four categories:
(1) willfulness, (2) bad faith, (3) fault, or (4) persistent dilatory
tactics tending to frustrate the judicial process. Morton v.
Continental Baking Co., 938 P.2d 271, 274, 276 (Utah 1997). In this
case, the district court made specific findings that RBI’s behavior
fell into categories (3) and (4); it found that “RBI, Stan, and
[Manager] are all at fault for failing to properly comply with the
discovery obligations regarding this case,” that “RBI has
engaged in persistent dilatory tactics tending to frustrate the
judicial process,” and that Stan and Manager, “[a]s agents of
RBI,” had also “engaged in persistent dilatory tactics tending to
frustrate the judicial process.”
¶20 These findings were also supported by competent
evidence. The court noted that RBI had “made some attempts to
comply with [its] discovery obligations,” but that “those
attempts were inadequate.” It noted that RBI had failed to
produce computers and flash drives that might have contained
responsive documents, and that RBI had failed to produce bank
statements and SBA Forms, even though those documents
existed and were within RBI’s possession or control. The court
also emphasized that RBI produced documents in fits and starts,
often in an untimely fashion, and often only after Summer filed
SDIs or motions seeking to compel production. Under these
circumstances, we cannot say that the court’s findings that RBI
was “at fault” for the incomplete and untimely production, and
that RBI engaged in “persistent dilatory tactics,” were clearly
erroneous or unsupported by evidence in the record.
¶21 The final step in a rule 37(b) sanctions proceeding—once
the court has found that a court order has been violated, and that
the violation is sufficiently egregious to warrant sanctions—is
for the court to select an appropriate sanction. In this situation,
the court found that RBI’s violations were sufficiently egregious
to warrant an order compelling them to reimburse Summer for
20180356-CA 11 2019 UT App 183Raass Brothers Inc. v. Raass
the attorney fees and costs she incurred in bringing RBI into
compliance with its discovery obligations. However, the court
rejected Summer’s request for more severe sanctions, concluding
that “the conduct by RBI, Stan, and [Manager] . . . is not
sufficiently willful or in bad faith as to warrant dismissal of
RBI’s claims as a sanction.”
¶22 We accord broad deference to a district court’s selection of
an appropriate sanction, and we “will not disturb” its choice
unless “abuse of discretion is clearly shown.” PC Crane Service,
LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 7, 273 P.3d 396(quotation simplified); see also Kilpatrick v. Bullough Abatement,
Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (“As a general rule, district
courts are granted a great deal of deference in selecting
discovery sanctions.” (quotation simplified)); Morton, 938 P.2d at
274 (“Once the [district] court determines that sanctions are
appropriate, the choice of an appropriate discovery sanction is
primarily the responsibility of the trial judge.” (quotation
simplified)). “An abuse of discretion may be demonstrated by
showing that the district court relied on an erroneous conclusion
of law or that there was no evidentiary basis for the [district]
court’s ruling.” Kilpatrick, 2008 UT 82, ¶ 23 (quotation
simplified). On this record, we find no abuse of discretion in the
court’s choice of sanction. As noted, the court declined
Summer’s invitation to dismiss RBI’s lawsuit as a sanction,
and instead chose a lesser sanction that is entirely appropriate
under the circumstances: when one party has to spend time,
effort, and money to compel another party to comply with its
discovery obligations, a district court may choose to order the
non-compliant party to pay attorney fees to its litigation
opponent.
¶23 In sum, the district court’s factual findings—that RBI
violated the March 1 Order, and that RBI, Stan, and Manager
were at fault for the violations and acted in a dilatory manner—
were supported by record evidence and are not
20180356-CA 12 2019 UT App 183Raass Brothers Inc. v. Raass
clearly erroneous. Moreover, the court did not abuse its
discretion by choosing, as an appropriate sanction, to order RBI
to reimburse Summer for the attorney fees and costs she
incurred in bringing RBI into compliance with its discovery
obligations. We therefore discern no error in the district court’s
Sanctions Order.
II
¶24 Next, RBI challenges the amount of the award, asserting
that $235,286.73 is simply too much money under the
circumstances. RBI’s argument has some facial appeal; indeed, a
fee award this large tends to draw a negative reaction, and at
first blush might appear excessive. But the question presented is
governed by an abuse of discretion standard and, on the record
before us, we are unable to conclude that the district court
abused its discretion in imposing this award.
¶25 District courts have wide discretion in the calculation of
amounts awarded as attorney fees. See Dixie State Bank v. Bracken,
764 P.2d 985, 988 (Utah 1988) (“Calculation of reasonable
attorney fees is in the sound discretion of the [district] court, and
will not be overturned in the absence of a showing of a clear
abuse of discretion.” (quotation simplified)). However, “an
award of attorney fees must be based on the evidence and
supported by findings of fact.” KB Squared LLC v. Memorial Bldg.
LLC, 2019 UT App 61, ¶ 31, 442 P.3d 1168 (quotation simplified).
When evaluating the reasonableness of a request for attorney
fees, courts are to evaluate several factors, including,
the difficulty of the litigation, the efficiency of the
attorneys in presenting the case, the reasonableness
of the number of hours spent on the case, the fee
customarily charged in the locality for similar
services, the amount involved in the case and the
result attained, and the expertise and experience of
the attorneys involved.
20180356-CA 13 2019 UT App 183Raass Brothers Inc. v. Raass
Bracken, 764 P.2d at 989 (quotation simplified). In assessing
reasonableness, “what an attorney bills or the number of hours
spent on a case is not determinative.” Id. at 990.
¶26 After the district court awarded attorney fees to Summer
in its Sanctions Order, Summer filed an affidavit of attorney fees
and costs, requesting a total of $343,590.12 in fees and costs. RBI
responded by filing an objection to Summer’s request, stating its
general view that Summer’s fee request was excessive, and
stating specific objections on the following grounds: (1) that the
award should be limited to time spent on “bringing and
prosecuting the discovery motion,” rather than on other
unrelated matters, and asserting that no fees should be awarded
for time spent prior to March 17, 2017; (2) that some of the work
performed by Summer’s lawyers had been duplicative, and that
sometimes they had assigned two lawyers to work on tasks or
appear at hearings that could reasonably have been handled by
one lawyer; and (3) that some of the time entries were vague,
and were not obviously related to the discovery efforts. RBI did
not object to the individual billing rates charged by Summer’s
attorneys. With regard to its first specific objection, RBI asked
the district court to reduce the amount of fees by $46,029 for time
spent before March 17, 2017, and by another approximately
$39,000 for time spent after that date on allegedly unrelated
matters; with regard to its vagueness objection, it asked for a
reduction of about $12,000; and with regard to its duplication
objection, it did not ask for a specific reduction amount, but
asked that Summer’s fee request be “reduced accordingly” for
duplicative efforts. In total, RBI asked the court to reduce
Summer’s fee request by about $85,000, plus an unspecified
amount for duplication.
¶27 At RBI’s request, the district court held an evidentiary
hearing to consider Summer’s fee application and RBI’s
objections. After taking evidence and considering argument
from both sides, the court made an oral ruling at the hearing,
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explaining on the record that it was largely persuaded by the
arguments in support of RBI’s objection. It wholly agreed with
RBI on the March 17 issue, ordering Summer’s fees reduced by
$46,029—exactly the amount requested by RBI—for time spent
prior to that date. The court also agreed with RBI that additional
requested time had been spent by Summer’s attorneys after
March 17, 2017, on matters unrelated to the discovery issues, and
the court therefore ordered Summer’s fees reduced by $39,630,
the approximate amount requested by RBI. The court also
agreed with RBI that Summer’s lawyers had, on occasion,
duplicated effort, and ordered Summer’s fees reduced by
approximately $19,000 for duplication. However, the court
rejected RBI’s vagueness objection, and refused to reduce
Summer’s fees on that ground. In sum, the district court largely
agreed with RBI’s objections and sustained most of them, and as
a result ordered Summer’s fees reduced by more than $100,000,
or approximately 30%.
¶28 In examining this record, we cannot conclude that the
court abused its discretion by not reducing the award yet
further. The court appeared sympathetic to RBI’s concerns about
the size of the fee award, and sustained each of its objections
except for the one regarding vagueness. Thus, the only
complaints RBI can conceivably have about the manner in which
the court calculated the amount are (1) that the court overruled
the vagueness objection, and (2) that the court did not cut
Summer’s fees deeply enough for duplication.
¶29 On the first issue, we agree with the district court that the
time entries at issue were not unduly vague. Viewed in context,
those time entries were clearly related to the discovery issues,
and a knowledgeable reader can reasonably ascertain what tasks
the time entries are referring to. And on the second issue, RBI
did not ask the district court for a specific reduction for
duplication; instead, it offered several examples of time entries it
considered duplicative, but did not attempt to compile a
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comprehensive list and did not ask for reduction by any specific
amount. We cannot say that the district court, faced with a non-
specific objection, abused its discretion by making its own effort
to identify duplicative effort, and concluding that Summer’s fee
award should be reduced by more than $19,000.
¶30 In short, the record reveals that the district court carefully
considered all of the evidence before it, including the
voluminous billing entries and the testimony about them, as well
as the objections and arguments of counsel, and issued a well-
considered ruling regarding the appropriate amount of the fee
award. The district court’s actions in this regard were a proper
exercise of its discretion.
CONCLUSION
¶31 The district court did not err in determining that RBI
engaged in discovery abuses that warranted sanction, and it did
not abuse its discretion in selecting an award of attorney fees as
an appropriate sanction. Moreover, the court did not abuse its
discretion in calculating the amount of attorney fees and costs to
be awarded.
¶32 Affirmed. 3
3. We acknowledge the Motion to Substitute Appellees that was
recently filed by RBI pursuant to rule 38(c) of the Utah Rules of
Appellate Procedure. See Utah R. App. P. 38(c) (stating that, “[i]f
substitution of a party is appropriate” for reasons other than
death or incompetency, “the court may substitute the party upon
good cause shown”). In our view, that motion is not ready for
consideration by this court, because issues remain to be decided
in the first instance, at the district court level, regarding the
validity of the sale at which RBI purportedly purchased
(continued…)
20180356-CA 16 2019 UT App 183Raass Brothers Inc. v. Raass
(…continued)
Summer’s rights in this appeal, and regarding the relative
priority of the various claimants (including, apparently,
Summer’s law firm pursuant to a purported attorneys’ lien) who
assert an interest in funds deposited with the district court. As a
reviewing court, we are simply not in a position to decide these
issues, some of which may be fact-bound, in the first instance.
Once those issues have been conclusively determined at the
district court level, we may have a role in reviewing those
determinations in the event one or more parties elect to timely
appeal from those determinations. The district court, following
issuance of this opinion, may consider whether to stay
enforcement of the judgment at issue in this case pending
determination of the issues surrounding substitution.
20180356-CA 17 2019 UT App 183