STATE OF MICHIGAN
COURT OF APPEALS
In re ATTORNEY FEES OF JOHN W. UJLAKY
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 23, 2017
Plaintiff,
v No. 330491
Kent Circuit Court
SHAWN DOUGLAS SIMPSON, LC No. 11-002833-FC
Defendant,
and
JOHN W. UJLAKY,
Appellant.
Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ.
PER CURIAM.
Appellant, John W. Ujlaky, appeals as of right the trial court’s order denying his request
for extraordinary appellate attorney fees. Because the trial court sufficiently complied with the
Supreme Court’s remand order, we affirm.
I. BASIC FACTS
In May 2012, Ujlaky was appointed by the Kent County Circuit Court to represent Shawn
Simpson on appeal. Simpson had been convicted by guilty plea of first-degree criminal sexual
conduct, MCL 750.520b, and Ujlaky filed with this Court a delayed application for leave to
appeal on Simpson’s behalf. In October 2012, we denied the application for lack of merit in the
grounds presented.1
1
People v Simpson, unpublished order of the Court of Appeals, issued October 24, 2012 (Docket
No. 312343).
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On October 26, 2012, Ujlaky submitted a Michigan Appellate Assigned Counsel System
(MAACS) Statement of Service and Order for Payment of Court Appointed Counsel to the Kent
County Circuit Court. He requested attorney fees totaling $2,150.05 and expenses totaling
$335.03. Ujlaky checked the box on the MAACS form labeled “Motion for extraordinary fees
(attach copy),” and he attached an itemized billing statement describing the services performed
and the time spent performing those services. On November 7, 2012, the circuit court signed an
order of payment totaling $995.03, which reflected the $335.03 in expenses and $660 in
attorney’s fees, which is the Kent County maximum allowed for standard appeals of guilty pleas.
On November 29, 2012, Ujlaky filed with the circuit court a motion for payment of
extraordinary professional fees. During a hearing on Ujlaky’s motion, the circuit court asked
him what was complex or difficult about the case that warranted extraordinary fees, to which
Ujlaky responded:
Well, nothing particularly you know. It’s just a matter of having to review the
record. There were substantial transcripts of 94 pages which involved an
extensive evidentiary hearing that had to be reviewed and prepared as part of the
application for leave to appeal, and certainly services exceeded the bare
minimum.
Thereafter, on April 16, 2013, the court denied Ujlaky’s request for extraordinary fees.
Ujlaky appealed the court’s order to this Court and we affirmed the trial court’s order, noting that
although “the circuit court failed to explicitly address whether the fees sought were both
extraordinary and reasonable,” Ujlaky had nevertheless failed to prove “the extraordinary nature
of the services rendered and the reasonableness of the fees sought.”2 On September 30, 2015,
our Supreme Court issued an order reversing our decision and remanding the case back to the
circuit court with instructions to “either award the requested fees, or articulate on the record its
basis for concluding that such fees are not reasonable.” In re Ujlaky, 498 Mich at 890, 890; 869
NW2d 624 (2015).
On remand, without holding a new hearing on Ujlaky’s motion, the circuit court issued a
five-page order and opinion articulating its basis for concluding that the requested fees were not
reasonable. The court reasoned:
In Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008), the Michigan
Supreme Court articulated the process for determining a reasonable attorney fee.
The Smith Court stated that in determining the amount of attorney fees in a given
case, a trail court should consider the eight factors set forth in MRPC 1.5(a)
through a four-step process. Smith, 481 Mich at 530-31.
2
In re Ujlaky, unpublished opinion per curiam of the Court of Appeals, issued October 23, 2014
(Docket Nos. 316494, 316809); unpub op at 7, rev’d in part In re Ujlaky, 498 Mich 890 (2015).
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First, the trial court must determine the “reasonable hourly rate” for the
attorney’s services. Id. Second, the court must determine the reasonable number
of hours expended by the attorney. Id. at 531. The court should exclude any
hours expended by the attorney that were excessive, redundant, or otherwise
unnecessary. Id. at 532 n 17. Third, the court must multiply the reasonable
hourly rate by the reasonable number of hours expended. Id. at 531. The product
is the baseline figure for reasonable attorney fees. Id. at 533. Fourth, the court
must consider the six other factors set forth in MRPC 1.5(a) and determine
whether any of these factors supports an increase or decrease in the baseline
figure. Smith, 481 Mich at 531.
As to step one, Kent County has established a reasonable hourly rate of
$55 per hour for appointed appellate counsel, and Mr. Ujlaky agreed to accept the
appointment at this hourly rate.
Turning now to step two, Mr. Ujlaky claims that he spent 1.3 hours
traveling to and from the State Appellate Defender Office (“SADO”) in Lansing
and conducting a videoconference with Mr. Simpson, 3.7 hours in “other
contact/communication” with Mr. Simpson, 9.4 hours reviewing the record, 4.0
hours of legal research, 12.5 hours drafting the delayed application for leave to
appeal, and 8.2 hours in “administrative time,” which totals 39.1 hours. Save for
the 1.3 hours spent conducting the videoconference, every one of those figure
represents time that was excessive, redundant, or otherwise unnecessary.
Deducting the travel time to and from Mr. Ujlaky’s office to SADO,
which is a round-trip of approximately seven miles, it appears that Mr. Ujlaky
spent approximately one hour discussing the case with Mr. Simpson during the
videoconference. That was a sufficient and reasonable amount of time to discuss
all of the relevant legal and factual issues in Mr. Simpson’s case. Therefore, the
3.7 hours of “other contact/communication” was excessive and unnecessary.
The 9.4 hours that Mr. Ujlaky claims to have spent reviewing the record is
also clearly excessive. The case file is not voluminous. At the time that Mr.
Ujlaky reviewed the file, it consisted of just one folder. Even acknowledging that
there was a significant amount of transcripts to review, approximately 100 pages
total, it should have taken Mr. Ujlaky no more than three hours, at most, to review
the entire case file.
The 31-page delayed application for leave to appeal that Mr. Ujlaky filed
contained a 22-page analysis of the two issues preserved by Mr. Simpson in his
conditional plea. Both of those issues were briefed by trial counsel and subject to
hearing prior to this Court ruling on those issues. Therefore, as aptly noted by the
Court of Appeals, Mr. Ujlaky “would not have done a great deal of original
analysis to present those issues on appeal.” In re Attorney Fees of John W.
Ujlaky, unpublished opinion per curiam of the Court of Appeals, issued October
23, 2015 (Docket No. 316494). Based on the research and analysis already
conducted by the trial counsel on those two issues, the 16.5 hours that Mr. Ujlaky
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claims to have spent conducting legal research and drafting the delayed
application for leave is, once again, clearly excessive.
Finally, as to the 8.2 hours of “administrative time” that Mr. Ujlaky claims
to have expended, these “administrative” tasks should have been included in the
time already accounted for, i.e., the time spent communicating with Mr. Simpson,
reviewing the case file, and preparing the delayed application for leave to appeal.
There is no reason to believe the [sic] Mr. Ujlaky had to expend a significant
amount of time outside the tasks just enumerated, let alone an additional 8.2
hours. Therefore, this amount of time is grossly excessive and clearly redundant.
The burden is on Mr. Ujlaky to prove the reasonableness of his requested
fees, and during oral argument, the Court asked him directly, “[W]hat was it of
this case that represented extraordinary complexity or difficulty?” He responded,
“Well, nothing particularly, you know.”
In sum, Mr. Ujlaky has failed to show how this case or the requirements of
his representation of Mr. Simpson were extraordinary in any regard. Therefore,
given the circumstances of Mr. Simpson’s case, which was a plea-based
conviction, 12 hours was a reasonable amount of time for Mr. Ujlaky to perform
all of the tasks required in his representation of Mr. Simpson, including preparing
and filing the delayed application for leave to appeal.
In step three, multiplying the reasonable hourly rate of $55 by the
reasonable number of hours expended, which is 12, gives a baseline reasonable
attorney fee of $660.
Now, considering the other six factors in MRPC 1.5(a):
* The likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer—
Not applicable.
* The amount involved and the results obtained—While counsel’s efforts
were unsuccessful, it would be inappropriate to use this factor in a
criminal case where due process rights are involved.
* The time limitations imposed by the client or by the circumstances—Not
applicable.
* The nature and length of the professional relationship with the client—
Not applicable.
* The experience, reputation, and ability of the lawyer or lawyers
performing the services—Counsel is a highly experienced appellate
attorney, and given that extensive legal knowledge and training, he should
have used the efficiencies gained through that experience to quickly spot
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issues and set forth his positions within the time parameters which he
agreed to when he accepted the case.
* Whether the fee is fixed or contingent—Counsel knew the rate of pay
and the standard maximum fee when he accepted the appointment.
None of these factors justify an attorney fee greater than the baseline $660
fee. Accordingly, Mr. Ujlaky has failed to meet his burden of proving that a
reasonable attorney fee for his representation of Mr. Simpson exceeds the $660
already tendered to him.
II. LAW OF THE CASE
A. STANDARD OF REVIEW
On appeal, Ujlaky only argues that the circuit court failed to follow our Supreme Court’s
order by issuing a written opinion and order without holding a hearing and articulating its
reasons “on the record.” We review de novo “[w]hether a trial court followed an appellate
court’s ruling on remand . . . .” Schumacher v Dep’t of Natural Resources, 275 Mich App 121,
127; 737 NW2d 782 (2007).
B. ANALYSIS
“It is the duty of the lower court or tribunal, on remand, to comply strictly with the
mandate of the appellate court.” Rodriguez v Gen Motors Corp (On Remand), 204 Mich App
509, 514; 516 NW2d 105 (1994). Ujlaky argues that the circuit court failed to follow our
Supreme Court’s order because it did not hold a hearing and state its reasons on the record.
Ujlaky does not provide any support for his interpretation that “on the record” necessarily
implies holding a hearing. However, in reference to MCR 2.517(A)(3), we have explained that
the
purpose of articulation is to facilitate appellate review. Remand for additional
articulation is unnecessary where it is manifest that the court was aware of the
factual issues and resolved them and it would not facilitate appellate review to
require further explication of the path the court followed in reaching the result.
[People v Johnson (On Rehearing), 208 Mich App 137, 141-142; 526 NW2d 617
(1994) (citations omitted).]
Here, our Supreme Court remanded this case to the circuit court to articulate its reasons on the
record, presumably to “facilitate appellate review.” See id. The court’s written order, as set
forth in detail above, sufficiently accomplished that task.
Moreover, assuming arguendo the circuit court was required to articulate in open court its
reasons for denying Ujlaky’s request for extraordinary fees, we would find the court’s failure to
do so harmless. Ujlaky does not challenge the substance of the circuit court’s ruling denying
him extraordinary fees. Specifically, he does not argue and we do not find that the court
misapplied the relevant caselaw or misapplied the law to the facts of this case. Accordingly,
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even if the court erred by not holding a hearing, the court’s ultimate decision was not
inconsistent with substantial justice. See MCR 2.613(A) (“[A]n error in a ruling or order . . . is
not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or
otherwise disturbing a judgment or order, unless refusal to take this action appears to the court
inconsistent with substantial justice.”).
Affirmed.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Kelly
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