Hollaar et al v. MarketPro South

Filing 79

MEMORANDUM DECISION AND ORDER-granting 66 Motion for Attorney Fees; re 66 MOTION for Attorney Fees and Memorandum in Support . It is therefore ORDERED that Defendant is awarded $43,505.50 in attorneys' fees and $429.91 in costs, in addition to that previously awarded, to be paid by Plaintiffs. See Order for further details. Signed by Judge Ted Stewart on 8/28/24. (jrj)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
LEE A. HOLLAAR, an individual, and
AUDREY M. HOLLAAR, an individual,
Plaintiffs,

v.

MARKETPRO SOUTH, INC, a Maryland
corporation,

MEMORANDUM DECISION AND
ORDER GRANTING ATTORNEY’S
FEES
Case No. 2:22-cv-559-TS
Judge Ted Stewart

Defendant.
This matter is before the Court on Defendant MarketPro South, Inc.’s Motion for
Attorney Fees. 1 For the reasons discussed below the Court will grant the Motion.
I. BACKGROUND
Defendant MarketPro South Inc. sent Plaintiffs Lee and Audrey Hollaar an unsolicited
letter stating its interest in purchasing a condominium unit owned by Plaintiffs in Washington
DC. The parties eventually entered into a Contract for the Sale and Purchase of Real Estate (“the
Contract”) whereby Defendant agreed to purchase the subject property for $650,000. However,
Defendant later informed Plaintiffs that they would not be moving forward with the purchase.
Plaintiff brought suit for breach of contract and breach of the implied covenant of good faith and
fair dealing. The Court entered judgment in favor of Defendant on January 11, 2023, after the
Court issued an order granting Defendant’s motion to dismiss on the basis that Defendant had a
statutory right to terminate the contract. Defendant subsequently filed a motion to recover its

1

Docket No. 66.

attorney’s fees under the Contract, and the Court granted the motion awarding Defendant
$32,366.10.
Plaintiffs appealed the Court’s dismissal to the Tenth Circuit. The Tenth Circuit affirmed
the Court’s dismissal and issued a separate order granting Defendant’s motion for attorneys fees
and remanding to this Court to consider “the amount of appellate attorneys’ fees reasonably and
necessarily incurred.” 2 Defendant subsequently submitted affidavits and billing invoices in
support of its request for an award of $45,335.41 in attorney’s fees in addition to that previously
awarded. Plaintiffs filed an opposition arguing that Defendant’s requested fees are not
necessarily incurred or reasonable.
II. DISCUSSION
As previously stated, the Tenth Circuit has already determined fees should be awarded to
Defendant and has tasked this Court with determining the amount of fees “reasonably and
necessarily incurred.” “[I]n this circuit, the matter of attorney’s fees in a diversity suit is
substantive and is controlled by state law.” 3 Applying Utah’s choice-of-law principles, the Court
previously found that District of Columbia law governs this dispute. 4 Under District of Columbia
law, “where a contractual agreement expressly provides for the payment of attorney’s fees, the
trial court’s discretion is limited to ascertaining what amount constitutes a ‘reasonable’ fee
award.” 5

2

Docket No. 56, at 1.

3

Boyd Rosene & Assocs., Inc. v. Kan. Mun. Gas Agency, 123 F.3d 1351, 1352 (10th Cir.

4

Docket No. 26, at 3.

1997).
5

Concord Enters,. Inc. v Binder, 710 A.2d 219, 225 (D.C. 1998) (quoting Cent. Fid.
Bank v. McLellan, 563 A.2d 358, 360 (D.C. 1989)).
2

“The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” 6
“In determining the number of hours reasonably expended, billing judgment must be exercised,
and hours that are ‘excessive, redundant or otherwise unnecessary’ must be excluded.” 7
“[A]n attorney’s usual billing rate is presumptively the reasonable rate, provided that this
rate is ‘in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.’” 8 Plaintiffs do not take issue with the
hourly rate used by Defendant’s attorneys. Defendant’s attorneys have submitted affidavits
supporting that the fees assessed in this case are based on their usual billing rate and are at or
below the Laffey Matrix rate. Therefore, the Court finds the hourly rates supporting the
requested fees to be reasonable.
The Court next looks to the number of hours expended to assess for reasonability.
Plaintiffs first argue that not all the fees Defendant seeks were necessarily incurred “because they
are only distantly related to the two oppositions that [Defendant] filed with the Tenth Circuit
[and] [s]ome don’t even seem to be related to the case at all.” 9 The Contract between the parties
contemplates that the prevailing part will receive “all costs of such proceeding and reasonable
attorney’s fees.” 10 Therefore, that some fees are related to time spent on matters other than the
appellate brief does not make those fees unrecoverable under the terms of the parties’ agreement.

6

Henderson v. D.C., 493 A.2d 982, 999 (D.C. 1985) (quoting Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)).
7

Id. (quoting Hensley, 461 U.S. at 434).

8

Kattan ex rel. Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993)
(quoting Blum v. Stenson, 465 U.S. 886, 895–96 n.11 (1984)).
9

Docket No. 68, at 5.

10

Docket No. 2-1, at 17.
3

Instead, the fees need only be related to the legal proceeding, which appears to be the case for the
requested fees.
Plaintiffs next argue fees should be denied because Defendant offers no explanation for
the necessity of any fee. Here, Defendant submitted affidavits and invoices explaining the work
accomplished for the billed time. The D.C. Circuit has explained that an “[o]utright denial” of
fees, like that seemingly requested by Plaintiffs, “may be justified when the party seeking fees
declines to proffer any substantiation in the form of affidavits, timesheets or the like, or when the
application is grossly and intolerably exaggerated, or manifestly filed in bad faith.” 11 “Quite
obviously, however, the fee application and supporting documentation in the case at bar are not
of this nature, and cannot be characterized as manifestly inadequate.” 12 The submissions
provided by Defendant’s attorneys include an hourly time log and a reasonable explanation as to
what work was done during that time. These provide a sufficient basis for the Court to assess the
reasonability of the requested fees. Requiring further explanation regarding the “necessity” of the
work performed in support of the litigation proceedings is not supported by the controlling case
law. 13
Plaintiffs also take issue with certain fees included that Defendant previously agreed to
exclude before the Tenth Circuit: namely a “professional courtesy discount” of $770.00, and a
$1,400.00 reduction, which Defendant agreed to after Plaintiffs argued it was due to Defendant’s

11

Jordan v. U.S. Dep’t of Just., 691 F.2d 514, 518 (D.C. Cir. 1982) (citations omitted).

12

Id. (internal quotation marks and citations omitted).

13

Tenants of 710 Jefferson St., NW v. D.C. Rental Hous. Comm’n, 123 A.3d 170, 189
(D.C. 2015) (finding that where “the attorney broke down her time entries into short segments,
with descriptions” such as “worked on first draft of brief” or “revised and sent new draft to
[outside counsel]” were “sufficiently descriptive and precise to make an independent
determination whether or not the hours claimed [were] justified”) (internal quotation marks and
citations omitted).
4

own mistake. Defendant responds that it has included more than the $770.00 discount previously
included by reducing the hours of Defendant’s attorney, Mr. Zhou, by 4.7 hours as well as
deducting the $175.00 fee related to pro hac vice processing. Defendant does not address the
$1,400.00 Plaintiffs allege Defendant waived. Because Defendant does not respond to Plaintiffs’
assertion that Defendant had previously agreed to forfeit this $1,400.00, the Court will reduce the
award by $1,400.00.
Finally, Plaintiffs “question[] whether the time [Defendant’s] attorneys spent on their
appellee brief was reasonable in light of the time they had spent on a directly-comparable motion
in this Court.” 14 Specifically, Plaintiffs assert that Defendant’s opposition to Plaintiffs’ Motion
for Summary Judgment “essentially raises the same arguments that they injected into [the]
appeal.” 15 Further, Plaintiffs assert that they spent about $10,000.00 in attorneys’ fees for
preparation of their appellate brief, which was similar to what Defendant had spent on the
preparation up until the day the brief was due and “it appears that they didn’t like what they had
produced and had a one-day, 18.9 hour, brief-a-thon before eventually filing that evening.” 16
D.C. courts have rejected similar arguments, finding, “even if a party is defending the
order appealed, an appellate brief has to conform to court requirements and is targeted to an
appellate panel; it is not simply a repetition of what has been submitted in the previous forum.” 17
“We expect that attorneys who appear before [an appellate court] will spend time reviewing the
record, researching the law in depth, and crafting arguments that are clear and concise.” 18 After

14

Docket No. 68, at 7.

15

Id. at 8.

16

Id.

17

Tenants of 710 Jefferson St. 123 A.3d at 190.

18

Id. at 191.
5

careful review of the submissions by Defendant’s attorneys, the Court does not find the time
billed in preparing a response to Plaintiffs’ appeal to be unreasonable.
Upon careful review of the submissions of Defendant’s attorneys, the Court does not
otherwise find any evidence of excessive, redundant or otherwise unnecessary fees assessed by
Defendant’s attorneys. Further, upon consideration of the factors set forth in Fraier v. Franklin
Investment Co., 19 the Court finds that the fees requested are reasonable. Accordingly, the Court
will grant Defendant’s motion and award the full amount of fees sought, less $1,400.00.
III. CONCLUSION
It is therefore
ORDERED that Defendant is awarded $43,505.50 in attorneys’ fees and $429.91 in
costs, in addition to that previously awarded, to be paid by Plaintiffs; It is further
ORDERED that Defendant’s Motion for Attorneys Fees (Docket No. 66) is GRANTED.
DATED August 28, 2024.
BY THE COURT:

________________________________________
TED STEWART
United States District Judge

19

468 A.2d 1338, 1342 n.2 (D.C. 1983).
6