Stommel v. LNV Corporation

Filing 92

MEMORANDUM DECISION AND ORDERgranting 74 Motion for Attorney Fees and Costs. Signed by Judge Dale A. Kimball on 5/13/2015. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

CHRISTINA STOMMEL,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING ATTORNEY
FEES AND COSTS

v.
Case No. 2:13CV821DAK
LNV CORPORATION,
Judge Dale A. Kimball
Defendant.

This matter is before the court on Plaintiff’s Motion for Award of Attorneys’ Fees and
Costs. The motion is fully briefed and the court concludes that a hearing would not significantly
aid in its determination of the motion. Accordingly, the court issues the following Memorandum
Decision and Order based on the materials submitted by the parties and the law and facts relevant
to the motion.
In this court’s January 30, 2015 Memorandum Decision and Order, the court concluded
that Plaintiff was entitled to recover her fees and costs pursuant to the America West Deed of
Trust at issue in this action and the Utah Reciprocal Fee Statute, Utah Code Ann. § 78B-5-826.
See Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14. Defendant asks the court to reconsider this
decision. However, Defendant presents the same arguments the court denied previously.
Defendant again attempts to distinguish the Dillon case. However, that case is remarkably
similar to the present case. Defendant sought an award of attorney fees under the America West
Deed of Trust in its Amended Answer. Dillon allows attorney fees and costs to the prevailing
party in a suit to enjoin a threatened foreclosure. Although Plaintiff did not specifically seek an

award of attorney fees in her Complaint, given that Dillon was decided nine months after she
filed her Complaint, she did seek “such other and further relief as the court deems just and
proper.” Given the Dillon decision that occurred in the interim, attorney fees and costs under the
subject Deed of Trust is just and proper further relief. Accordingly, the court finds no basis for
reconsidering its prior decision that an award of attorney fees and costs is appropriate.
Plaintiff’s motion requests $105,487.00 in attorney fees and $3365.10 in recoverable
costs. Defendant objects to the reasonableness of the requested fees and costs. Plaintiff, as the
party requesting fees, bears the initial burden of proving the amount of hours spent on the case
and the appropriate hourly rates. See Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1249
(10th Cir. 1998); Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493 (10th
Cir. 1994). The court must also determine whether counsel has exercised billing judgment with
respect to the claimed number of hours worked. See Ellis v. University of Kan. Med. Ctr., 163
F.3d 1186, 1202 (10th Cir. 1998). In determining the reasonableness of the number of hours, “the
fee applicant should exercise billing judgment with respect to the number of hours worked and
billed . . . Billing judgment consists of winnowing hours actually expended down to hours
reasonably expended.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005).
Defendant contends that Plaintiff’s requested attorney fees are unreasonable because they
include work related to an unsuccessful claim. Plaintiff brought three causes of action to stop
Defendant’s threatened foreclosure of her home: promissory estoppel; declaratory judgment; and
injunctive relief. This court granted Plaintiff summary judgment on her declaratory judgment
and injunctive relief causes of action, declaring the America West Deed of Trust to be without
value and incapable of being the basis for a foreclosure action and enjoining Defendant from
attempting to use the Deed of Trust to foreclose Plaintiff’s property. Plaintiff did not move for

summary judgment on her promissory estoppel claim, and the court denied Defendant’s request
for summary judgment on Plaintiff’s promissory estoppel claim. Therefore, Plaintiff’s
promissory estoppel claim is unresolved. However, by receiving summary judgment on her
declaratory judgment and injunctive relief claims, Plaintiff obtained all the relief she had
requested in her Complaint. Plaintiff’s promissory estoppel cause of action did not seek any
relief different from or in addition to the relief sought under the other two causes of action.
Similarly, this is not a situation in which Plaintiff has not yet obtained all the relief she was
seeking. Although Defendant characterizes the promissory estoppel claim as an unsuccessful
claim, Plaintiff prevailed completely.
A party is deemed the prevailing party if it succeeds on any “significant issue in litigation
which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). Moreover, a failure to prevail on all claims does not mandate a
reduction of attorneys’ fees. In Hensley, the Court stated that there are two questions that must
be asked: “First, did the plaintiff fail to prevail on claims that were unrelated to the claim on
which [s]he succeeded? Second, did the plaintiff achieve a level of success that makes the hours
reasonably expended a satisfactory basis for making a fee award?” Id. at 434. Claims that
involve a “common core of facts” or “related legal theories” make it “difficult to divide the hours
expended on a claim-by-claim basis.” Id. at 435. The Court stated that “[s]uch a lawsuit cannot
be viewed as a series of discrete claims.” Id. Moreover, “[w]here a lawsuit consists of related
claims, a plaintiff who has won substantial relief should not have his [or her] attorney’s fee
reduced simply because the district court did not adopt each contention raised.”
In this case, Plaintiff did not fail to succeed on any claim. At the summary judgment
stage, she merely chose to obtain her relief on two of the three claims asserted. Plaintiffs three

claims involve a “common core of facts” and “related legal theories” that make it “difficult to
divide the hours expended on a claim-by-claim basis.” Id. at 435. As such, the “lawsuit cannot
be viewed as a series of discrete claims.” Id. Plaintiff’s three claims sought the same relief and,
when she obtained that relief, she prevailed completely. The work on those interrelated claims,
therefore, need not be separately considered for purposes of determining an award of attorney
fees. The work completed to oppose Defendant’s summary judgment motion relates to all three
causes of action. The interconnected work on interconnected claims does not make Plaintiff’s
request unreasonable.
Next, Defendant claims that some of counsel’s fees were excessive. Defendant points to
entries relating to the deposition of Ms. Kelley. Plaintiff, however, has adequately explained the
combination of work that occurred on the days in question. The court is aware that much of the
work related to a deposition occurs outside the actual deposition hours. The court does not find
the work to be excessive.
Defendant also argues that Plaintiff seeks an award of attorney fees for activities not
directly related to prosecuting her motions against Defendant. In particular, Defendant takes
issue with Plaintiff’s FOIA request and other informal discovery efforts with the FDIC even
though Plaintiff had moved the court to compel Defendant to produce those same documents.
However, Defendant claimed rights in the Deed of Trust by virtue of the assignment from the
FDIC and refused to produce the assignment. The court does not view counsel’s decision to
pursue a motion to compel and a FOIA request at the same time to be unreasonable or excessive.
Moreover, there is no need for the work to be tied to a motion for summary judgment rather than
discovery in general.
Defendant further argues that Plaintiff seeks fees and costs in connection with the

research of claims that were not asserted in connection with the motions for summary judgment
and incurred in representation of a third party, Select Title, in response to a subpoena and motion
to compel. Plaintiff asserts that assisting Select Title was in direct furtherance of Plaintiff’s
interests. Plaintiff assisted Select Title in demonstrating that it had turned over all the documents
requested and obviated the need for a show cause hearing. The court does not find such work to
be unreasonable.
Finally, Defendant asserts that Plaintiff seeks recovery for fees incurred by non-lawyers
for work that was unnecessary or which could have been performed by a secretary. The work
consists of tasks such as managing, reviewing, and preparing documents and exhibits. Such
work is customarily performed by paralegals in this legal market. Therefore, the court does not
find $511.50 unreasonable for these types of services.
The court concludes that Plaintiff’s requested fees and costs are sufficiently detailed,
necessary to the prosecution of the action, and reasonable. Accordingly, the court awards
Plaintiff $105,487.00 in attorney fees and $3365.10 in costs recoverable under the America West
Trust Deed and Utah’s Reciprocal Fee Statute.
DATED this 13th day of May, 2015.
BY THE COURT:

________________________________
DALE A. KIMBALL
United States District Judge

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