2017 UT App 232
THE UTAH COURT OF APPEALS
SHARROL ANDERTON, MARY BLANCHARD, TERRY CHRISTENSEN,
AND DUANE BOREN JR.,
Appellants,
v.
DAVID L. BOREN AND SHERRON L. BOREN,
Appellees.
Opinion
No. 20160145-CA
Filed December 21, 2017
Eighth District Court, Roosevelt Department
The Honorable Samuel P. Chiara
No. 143000048
Russell T. Monahan, Attorney for Appellants
Clark B. Allred and Brad D. Brotherson, Attorneys
for Appellee David L. Boren
Diana J. Huntsman, Sherri L. Walton, Jack D. Smart,
D. Karl Mangum, Attorneys for Appellee
Sherron L. Boren
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN, Judge:
¶1 Sharrol Anderton, Mary Blanchard, Terry Christensen,
and Duane Boren Jr. (collectively, Appellants) appeal the district
court’s grant of summary judgment in favor of David L. Boren
and Sherron L. Boren (collectively, Appellees). We affirm and
remand to the district court for the limited purpose of
calculating Appellees’ attorney fees incurred on appeal.
Anderton v. Boren
BACKGROUND
¶2 Duane Boren Sr. and his wife, Sherron, had six children—
Sharrol, Mary, Terry, Duane Jr., David, and Lucky. In 1980,
Duane Sr. and Sherron created the Duane Boren Family Living
Trust (the Trust). At that time, the Trust was funded with only a
life insurance policy, but additional assets were later added to
the Trust. A joinder agreement, signed contemporaneously with
the trust agreement and incorporated by reference, appointed
Sharrol, Mary, Duane Jr., and Terry Lee Monks as co-trustees.
¶3 In 1985, Duane Sr. and Sherron signed an amendment to
the Trust appointing Sherron as trustee. Duane Sr. later crossed
out Sherron’s name and wrote in David’s name. 1 A second
amendment, executed in 1990, designated David as successor
trustee and changed the distribution of the assets by reallocating
the assignment of mineral rights; assigning “all agricultural
equipment, all livestock, all water rights and the surface rights to
all cultivated, pasture or hay ground” to David and Lucky 2 and
the remaining “waste ground” real estate to the other children;
and dividing the remainder of the estate equally among the
children.
¶4 Duane Sr. died in December 1992. At the time of Duane
Sr.’s death, he and Sherron “owned a farm with some equipment
and mineral rights.” Duane Sr.’s undivided one-half interest in
the couple’s property was distributed to David as trustee of the
Trust. Sherron owned the other one-half interest. The Trust
1. Various handwritten strike-outs and additions in the joinder
agreement and the subsequent amendments somewhat confuse
the issue of who was appointed as trustee and when, but the
identity of the trustee is not in dispute.
2. Lucky passed away in 2001.
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assets were to be used for the benefit and at the direction of
Sherron during her life.
¶5 From 1993 to the present, David has managed the Trust
properties and properties owned by Sherron with her input. At
some point, Sherron deeded half of her undivided one-half
interest in the farm to David. In 2011, David, as trustee, and
Sherron entered into a formal agreement acknowledging that
David had “been operating and managing the Farm.” The
agreement granted David a salary of $1,200 per month “for
operating and managing the farm” “on a part time basis,”
authorized the lease of farm equipment from David, and
permitted David to graze his cattle on the farm.
¶6 From 1993 to 2012, Appellants did not request an
accounting from David. In October 2012, an attorney for Duane
Jr. requested such information from David. Duane Jr.’s attorney
and Appellants were provided with an inventory of the Trust,
accountings for the Trust, and tax returns from 2008 through
2011, and were subsequently provided with accountings and tax
returns for 2012, 2013, and 2014.
¶7 In 2014, Appellants filed a complaint against Appellees
David and Sherron Boren, alleging that David had “stolen and
embezzled money from the Trust,” distributed Trust property to
himself, forged documents, coerced Sherron to sign documents,
given himself an “unauthorized salary,” commingled his assets
with those of the Trust, and made an untruthful accounting.
Based on these allegations, Appellants brought causes of action
for breach of the Trust, breach of fiduciary duty, accounting, and
negligent misrepresentation. Appellants also sought a
declaratory judgment to have Appellees “removed as Trustees of
the Trust.”
¶8 In January 2015, Appellees deposed Appellants. In their
depositions, each of the Appellants “admitted they did not have
any support for the allegations [in their complaint], or admitted
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that they had not reviewed the accountings and supporting
documents provided to them concerning the Trust.” “Based on
[Appellants’] own testimony that they had no facts to support
their claims,” Appellees moved for summary judgment.
¶9 In opposition to Appellees’ motion for summary
judgment, Duane Jr. filed a declaration (the Declaration) in
which he made additional assertions regarding David’s actions.
Appellees filed a motion to strike the Declaration on the ground
that the Declaration attempted “to contradict Duane Boren Jr.’s
deposition testimony, . . . lack[ed] admissible facts, and . . .
relie[d] on inadmissible suppositions, opinions, argument and
innuendo.” The district court granted Appellees’ motion to strike
on two alternative bases: first, that the Declaration contradicted
Duane Jr.’s deposition testimony and, second, that the
Declaration did “not provide facts on the pertinent issues, but
merely the opinions of Duane Boren Jr.”
¶10 After striking the Declaration, the court also granted
Appellees’ motion for summary judgment. The court determined
that all four Appellants had “admitted during their depositions
that there were no facts to support” their allegations of
embezzlement, forgery, self-dealing, and coercion. The court
further determined that, because Appellants were not income
beneficiaries, they were not entitled to an accounting under the
terms of the Trust. The court also concluded that Appellants had
made “no showing” that David had unlawfully commingled his
personal assets with those of the Trust. Finally, the court
determined that there was “no evidence to support the argument
that the farm has been operated in contravention [of Sherron’s]
wishes, or that the salary paid to [David] for managing the Trust
was not appropriate. The fact that the farm had a tax loss,
without more, does not support a claim of mismanagement.”
Because the court determined that there were no facts to support
Appellants’ claims, it granted summary judgment in favor of
Appellees. The court also awarded Appellees attorney fees
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pursuant to Utah Code section 75-7-1004. See infra ¶ 32.
Appellants challenge the district court’s ruling.
ISSUES AND STANDARDS OF REVIEW
¶11 Appellees dispute Appellants’ standing to bring this
action, so we must address that question before reaching the
merits of Appellants’ arguments. See Jones v. Barlow, 2007 UT 20,
¶ 12, 154 P.3d 808 (“Standing is a jurisdictional requirement that
must be satisfied before a court may entertain a controversy
between two parties.” (brackets, citation, and internal quotation
marks omitted)). “[T]he question of whether a given individual
or association has standing to request a particular relief is
primarily a question of law[.]” Kearns-Tribune Corp. v. Wilkinson,
946 P.2d 372, 373 (Utah 1997). To the extent that there are
“factual findings that bear on the issue” of standing, we “review
such factual determinations made by a trial court with
deference.” Id. at 373–74. We ultimately conclude that
Appellants have standing, and we therefore reach the merits of
Appellants’ arguments.
¶12 Appellants first contend that the district court erred in
ruling the Declaration inadmissible. Affidavits supporting or
opposing a motion for summary judgment “must be made on
personal knowledge, must set out facts that would be admissible
in evidence, and must show that the affiant or declarant is
competent to testify on the matters stated.” Utah R. Civ. P.
56(c)(4). “Accordingly, affidavits containing allegations that ‘are
not based on personal knowledge, lack foundation, are
conclusory, [or] contain hearsay’ may be stricken.” Golden
Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 13, 241 P.3d
375 (quoting Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 27,
982 P.2d 65). “Similarly, ‘[a]ffidavits reflecting an affiant’s
unsubstantiated conclusions and opinions are inadmissible.’” Id.
(alteration in original) (quoting Cabaness v. Thomas, 2010 UT 23,
¶ 33, 232 P.3d 486). “District courts generally have broad
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discretion to decide motions to strike summary judgment
affidavits,” and we therefore “review a district court’s decision
on a motion to strike affidavits submitted in support of or in
opposition to a motion for summary judgment for an abuse of
discretion.” Mower v. Simpson, 2017 UT App 23, ¶ 11, 392 P.3d
861 (citation and internal quotation marks omitted); see also
Murdock, 1999 UT 39, ¶ 25 (observing that “an affidavit is simply
a method of placing evidence of a fact before the court” and
concluding that a district court’s “decision to admit evidence is
reviewed under a broad grant of discretion”). However, we
review a district court’s ultimate grant or denial of summary
judgment for correctness. Mower, 2017 UT App 23, ¶ 26.
¶13 Second, Appellants contend that the district court erred in
granting summary judgment in favor of Appellees on
Appellants’ actions for breach of trust, breach of fiduciary duty,
request for accounting, and request for declaratory judgment.
“We review the district court’s grant of a motion for summary
judgment for correctness.” Id. ¶ 26 (citation and internal
quotation marks omitted).
¶14 Finally, Appellants contend that the district court
improperly awarded attorney fees to Appellees. “The
appropriate standard for reviewing equitable awards of attorney
fees is abuse of discretion.” Fisher v. Fisher, 2009 UT App 305, ¶ 8,
221 P.3d 845 (brackets, citation, and internal quotation marks
omitted). “[W]e give no deference to the [district] court’s
determination as to whether attorney fees were allowed under a
statute.” Id.
ANALYSIS
I. Standing
¶15 Before addressing Appellants’ arguments, we must first
determine the threshold issue of whether they have standing.
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“Standing is a jurisdictional requirement that must be satisfied
before a court may entertain a controversy between two parties.”
Jones v. Barlow, 2007 UT 20, ¶ 12, 154 P.3d 808 (brackets, citation,
and internal quotation marks omitted). “Traditional standing
criteria require that the interests of the parties be adverse and
that the party seeking relief have a legally protectable interest in
the controversy.” Hogs R Us v. Town of Fairfield, 2009 UT 21, ¶ 8,
207 P.3d 1221 (citation and internal quotation marks omitted).
“Either party, or the court on its own motion, may properly raise
the issue of standing for the first time on appeal.” Wade v. Burke,
800 P.2d 1106, 1108 (Utah Ct. App. 1990).
¶16 Appellees assert that Appellants lacked standing to bring
the case because they do not have a legally protectable interest in
the controversy. See Hogs R Us, 2009 UT 21, ¶ 8. The terms of the
Trust grant Sherron a special power of appointment that permits
her to “exclude any one or more of the beneficiaries” at her
death by will. Appellees assert that Sherron’s ability to remove
Appellants as beneficiaries precludes their interest from being
legally protectable.
¶17 Appellees’ argument relies on Montrone v. Valley Bank &
Trust Co., 875 P.2d 557 (Utah Ct. App. 1994), in which this court
held that beneficiaries of a trust did not have standing to seek an
accounting, because the settlor retained a general power of
appointment that permitted her to “negate[] the trustee’s duties
to account to her children as beneficiaries.” Id. at 559. This case is
distinguishable from Montrone because there is no evidence that
Sherron has taken the necessary steps to exercise her power of
appointment to remove any of her children as beneficiaries and,
even if she had, any such exercise of the power would not be
effective until after her death. The mere potential for Appellants
to be removed as beneficiaries does not negate their standing
when they currently remain beneficiaries under the terms of the
Trust.
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¶18 Appellees also argue that Appellants do not have
standing to pursue claims relating to the operation of the farm
because the second amendment to the Trust divests them of any
interest in the farm land and equipment. However, the
management of the farm could very well have an impact on the
viability of the other Trust assets in which Appellants do retain a
beneficial interest. Accordingly, we determine that Appellants
have standing to bring their claims.
II. The Declaration
¶19 Appellants contend that the district court abused its
discretion by granting Appellees’ motion to strike the
Declaration. “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.” Mower v. Simpson, 2017 UT App 23, ¶ 11, 392
P.3d 861 (citation and internal quotation marks omitted).
¶20 The district court articulated two alternative bases for
striking the Declaration. First, it determined that the Declaration
violated “case law which disallows affidavits made after sworn
testimony which contradicts that testimony.” “The general rule
in Utah is that an affiant may not raise an issue of fact by his
own affidavit which contradicts his deposition, unless he can
provide an explanation of the discrepancy.” Gaw v. Department of
Transp., 798 P.2d 1130, 1140 (Utah Ct. App. 1990) (citation and
internal quotation marks omitted). Appellants argue that this
rule cannot be applied in the present case, because it applies
only when a party “takes a clear position in a deposition.” See
Webster v. Sill, 675 P.2d 1170, 1172–73 (Utah 1983). Because
Duane Jr. denied having knowledge of facts supporting the
complaint in his deposition, Appellants assert that he took no
clear position. The court determined that such a denial is a clear
position and concluded that the result urged by Appellants was
contrary to the intent of Webster, concluding, “A person cannot
avoid being deposed and avoid answering questions by claiming
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no knowledge, only to subsequently file a self-serving affidavit
in order to avoid summary judgment.” It is unnecessary for us to
resolve the question of whether claiming no knowledge may
constitute a “clear position” under Webster, because we
ultimately agree with the second basis for the district court’s
decision—that “the Declaration does not provide facts on the
pertinent issues, but merely the opinions of Duane Boren Jr.”
¶21 “An affidavit or declaration used to support or oppose a
motion [for summary judgment] must be made on personal
knowledge, must set out facts that would be admissible in
evidence, and must show that the affiant or declarant is
competent to testify on the matters stated.” Utah R. Civ. P.
56(c)(4). In his declaration, Duane Jr. made a number of
assertions that appear to be based on “information and belief”
rather than personal knowledge, such as his assertion that David
“used the assets of the Family Trust to purchase . . . items for
personal use.” See Walker v. Rocky Mountain Recreation Corp., 508
P.2d 538, 542 (Utah 1973) (“Statements made merely on
information and belief will be disregarded.”). Duane Jr. cited no
facts in support of his assertion that the items in question were
purchased for David’s personal use rather than for the benefit of
the farm. He attempted to support his assertion by referring to a
ledger of farm expenses, but there is no indication in this ledger
that the items in question were purchased for David personally;
Duane Jr. simply assumed that certain items, by their nature,
must have been personal.
¶22 Duane Jr. also offered opinions regarding the farm’s
finances that went beyond the realm of permissible lay witness
testimony. See Utah R. Evid. 701 (providing that opinion
testimony by lay witnesses is permitted only to the extent that it
is “(a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining
a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge”). For example, he opined, based on his
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review of the tax returns from 2008 to 2014 and the accountings,
that the farm consistently operated “at a substantial loss,” that
those losses were the result of David using the Trust to pay the
farm expenses while he pocketed farm profits, and that David’s
bookkeeping had been “sloppy and incomplete.” Such
conclusions are beyond the “ken of the average bystander” and
thus exceed the scope of permissible lay opinion testimony. See
State v. Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176.
¶23 Further, nothing in the Declaration created an issue of
material fact that could have precluded summary judgment.
Duane Jr. asserted that David paid himself for labor on the farm,
that the farm leased equipment from David, and that he allowed
his personal cattle to graze on the farm. None of these facts,
without more, support Appellants’ claims of malfeasance. There
is nothing inherently inappropriate about David paying himself
for labor he performed on behalf of the farm or leasing
equipment to the farm. Similarly, there is nothing inherently
inappropriate about grazing his cattle on the farm in which he
owned a 25% interest. “An affidavit that merely reflects the
affiant’s unsubstantiated opinions and conclusions is insufficient
to create an issue of fact,” Smith v. Four Corners Mental Health
Center, Inc., 2003 UT 23, ¶ 50, 70 P.3d 904 (citation and internal
quotation marks omitted), and is therefore inadmissible, see
Cabaness v. Thomas, 2010 UT 23, ¶ 33, 232 P.3d 486 (“Affidavits
reflecting an affiant’s unsubstantiated conclusions and opinions
are inadmissible.”); accord Brown v. Jorgensen, 2006 UT App 168,
¶ 20, 136 P.3d 1252. Thus, the district court did not exceed its
discretion in striking the affidavit.
III. Summary Judgment
¶24 Appellants next contend that the district court erred in
granting Appellees’ motion for summary judgment on
Appellants’ claims for breach of trust, breach of fiduciary duty,
accounting, and declaratory judgment. “Summary judgment is
appropriate only when there is no genuine issue of material fact
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and the moving party is entitled to judgment as a matter of law.”
Mountain West Surgical Center, LLC v. Hospital Corp. of Utah, 2007
UT 92, ¶ 10, 173 P.3d 1276. In reviewing the district court’s grant
of summary judgment, we “view[] the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600
(citation and internal quotation marks omitted).
¶25 Appellants’ breach of trust and breach of fiduciary duty
claims alleged that Appellees had commingled their personal
property with the Trust property “to their own personal gain but
to the detriment of the qualified beneficiaries,” that they had
engaged in self-dealing, that they had failed to invest the Trust
assets and property prudently, and that they had failed to keep
adequate records, provide adequate accounting, or communicate
with Appellants “regarding the administration of the Trust.” We
agree with the district court that Appellants failed to raise a
genuine issue of material fact with respect to these assertions.
¶26 First, Appellants failed to present evidence that Appellees
commingled their property with the Trust property to the
detriment of Appellants. In their depositions, each Appellant
conceded that there was no evidence of commingling. Although
Duane Jr. asserted that David had grazed his cattle on the farm,
Appellants failed to present any evidence demonstrating that
David did so at the Trust’s expense. When asked about this in an
interrogatory, David indicated that both he and “other family
members” ran livestock on the farm at various times over the
years and stated that “[t]he [T]rust was annually compensated
for the use of its interest in the property.” Further, the fact that
David used the farm to graze his cattle does not alone suggest
unlawful commingling or any detriment to the Trust
beneficiaries, particularly given that he personally held a 25%
interest in the farm.
¶27 Similarly, Appellants’ assertion that David used Trust
assets to purchase items for himself lacks support. Appellants
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assert that David “used the assets of the Family Trust to
purchase other items for his personal use, including but not
limited to[:] 4 wheelers, camp trailers, motorbikes and
snowmobiles.” The document on which Appellants rely in
support of this assertion is a page from a ledger showing Trust
expenditures in the fall of 2010. The ledger does not indicate the
purchase of camp trailers, motorbikes, or snowmobiles. It does
show a down payment for a four-wheeler. This record merely
indicates that the four-wheeler was purchased by the Trust, and
there is no evidence to indicate that it was not actually
purchased for the Trust’s benefit. Appellants blame their failure
to support their claim on Appellees’ failure to keep adequate
records. But there is not even a hint in the evidence that more
complete records would have shown that the four-wheeler, or
any other personal property, was purchased by the Trust for
David’s personal benefit.
¶28 Further, Appellants concede that “the commingling of
assets is permitted if the Trustee maintains adequate records.”
Although Appellants claim that “there is no evidence that David
Boren kept any records to maintain the separate identity of the
Trust property from his own,” they admitted during their
depositions that they had not reviewed the accountings and tax
returns provided to them and that they did not have any
evidence to support their claim regarding David’s allegedly
inadequate recordkeeping. Appellants’ bare assertions on this
issue are insufficient to create an issue of fact regarding whether
Appellees unlawfully commingled assets or whether they kept
adequate records of any commingling. See Kitchen v. Cal Gas Co.,
821 P.2d 458, 461 (Utah Ct. App. 1991) (“[A] party may not
merely rely on bald assertions . . . to overcome a motion for
summary judgment.”).
¶29 Appellants’ assertion that Appellees engaged in self-
dealing similarly suffers from a lack of evidentiary support. “A
trustee has a duty of loyalty to the beneficiaries of a trust.”
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Wheeler ex rel. Wheeler v. Mann, 763 P.2d 758, 759 (Utah 1988).
That duty of loyalty “requires the trustee to administer the trust
solely in the interest of the beneficiary.” Id. at 760 (citation and
internal quotation marks omitted). “As such, a trustee is not
permitted to engage in self-dealing, or to place himself in a
position where it would be for his own benefit to violate his duty
to the beneficiaries.” Id. (citation and internal quotation marks
omitted). Appellants’ only argument for self-dealing appears to
rest on the fact that David took a salary as compensation for his
work on the farm and leased his personal equipment to the farm.
These facts alone do not support an allegation of self-dealing,
and all four Appellants admitted in their depositions that they
had no facts to support such an allegation. In fact, Sharrol
indicated that she thought David’s salary of $1,200 per month
was “fine.” All Appellants likewise indicated that they lacked
any facts to support a claim that Appellees had failed to
prudently manage the Trust.
¶30 Appellants also alleged that Appellees failed to provide
them an accounting to which they were entitled “with respect to
the administration of the Trust.” But the Trust requires only that
the trustee provide an accounting to “income beneficiaries.” The
only income beneficiary was Sherron. Thus, Appellants were not
entitled to an annual accounting under the terms of the Trust. To
the extent that Appellants may have been entitled to an
accounting under Utah law, Appellees incurred no obligation to
provide such an accounting until Appellants requested it in
2012, at which point it was provided. See Utah Code Ann. § 75-7-
303(3) (Michie 1993) (“Upon reasonable request, a beneficiary is
entitled to a statement of the accounts of the trust annually . . . .”
(emphasis added)); id. § 75-7-811(3) (LexisNexis Supp. 2017) (“A
trustee shall send to the qualified beneficiaries who request it, at
least annually . . . , a report of the trust property . . . .” (emphasis
added)). Thus, there is no evidence to support Appellants’
allegations that Appellees failed to account or communicate.
And contrary to their vague assertions that the accounting was
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incomplete, Appellants admitted in their depositions that they
lacked evidence to support this claim. Indeed, Appellants
indicated that they had not even reviewed the accountings and
documents provided to them.
¶31 Finally, Appellants assert that the district court should not
have granted summary judgment on their request for
declaratory judgment. But this assertion rests solely on
Appellants’ challenges to the district court’s ruling on their other
claims. Because we have determined that the district court did
not err in granting summary judgment on those claims, we need
not further address the declaratory judgment claim.
IV. Attorney Fees
¶32 Appellants next contend that the district court improperly
granted Appellees’ motion for attorney fees. In the district court,
Appellees requested their attorney fees pursuant to Utah Code
section 75-7-1004, which provides, “In a judicial proceeding
involving the administration of a trust, the court may, as justice
and equity may require, award costs and expenses, including
reasonable attorney’s fees, to any party, to be paid by another
party or from the trust that is the subject of the controversy.”
Utah Code Ann. § 75-7-1004(1) (LexisNexis Supp. 2017). The
district court awarded attorney fees and costs to Appellees after
reviewing several factors enumerated in Shurtleff v. United Effort
Plan Trust, 2012 UT 47, 289 P.3d 408, “that courts should
consider when determining whether justice and equity warrant
an award of costs and expenses.” Id. ¶ 23 (identifying five non-
exclusive factors).
¶33 On appeal, Appellants do not challenge the basis for the
district court’s award of attorney fees to Appellees. Indeed,
Appellants concede that the district court “used the appropriate
factors under Shurtleff.” Appellants merely assert that the district
court’s attorney fees award should be reversed only if this court
reverses the district court’s order striking the Declaration and
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granting summary judgment in favor of Appellees. Because we
have concluded that the district court did not abuse its discretion
in excluding the Declaration and did not err in granting
summary judgment to Appellees, we need not address this
argument further.
¶34 Finally, Appellees contend that they should be awarded
their attorney fees and costs incurred on appeal. “[W]hen a party
who received attorney fees below prevails on appeal, the party is
also entitled to fees reasonably incurred on appeal.” Austin v.
Bingham, 2014 UT App 15, ¶ 33, 319 P.3d 738 (alteration in
original) (citation and internal quotation marks omitted).
Appellees received attorney fees below and have prevailed on
appeal. Accordingly, we award Appellees their reasonable fees
incurred on appeal in an amount to be determined by the district
court on remand.
CONCLUSION
¶35 We conclude that Appellants have standing to bring their
claims. We also conclude that the district court did not exceed its
discretion in striking the Declaration and did not err in granting
summary judgment in favor of Appellees. We therefore affirm
the district court’s ruling and remand for the limited purpose of
permitting the district court to calculate Appellees’ fees
reasonably incurred on appeal.
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