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Cizek v. Concerned Citizens of Eagle River (6/13/2003) sp-5697
Cizek v. Concerned Citizens of Eagle River (6/13/2003) sp-5697
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JENNIFER CIZEK and JOSEPH )
CIZEK, )
) Supreme Court No. S-
10293/10294
Appellants/Cross-Appellees, )
) Superior Court No.
v. )
3AN-98-7307 CI
)
CONCERNED CITIZENS OF EAGLE ) O P I N I O N
RIVER VALLEY, INC., NORA )
FIRMIN, PATRICIA BALZARINI, ) [No. 5697 -
June 13, 2003]
and CHARLES BALZARINI, )
)
Appellees/Cross-Appellants. )
____________________________________ )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Brian C. Shortell, Judge.
Appearances: William S. Cummings, Ashburn &
Mason, Anchorage, for Appellants/Cross-
Appellees. Suzanne H. Ewy, Law Offices of
Suzanne H. Ewy, Barrow, for Appellees/Cross-
Appellants.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Concerned Citizens of Eagle River Valley, Inc. brought
suit against property owners who were seeking to have their land
rezoned to permit its use as a private airstrip. After settling
with one defendant on the eve of trial, Concerned Citizens
prevailed at trial against the Cizeks, and the superior court
awarded it $40,000 in attorneys fees. The court justified this
award both as partial public interest litigant fees and enhanced
prevailing party fees under Alaska Rule of Civil Procedure 82.
We affirm the superior courts action in its entirety: the award
of partial attorneys fees under Civil Rule 82, the award of
enhanced fees under subsection (b)(3) of that rule, the superior
courts use of the Cizeks fees as a starting point in its
calculations, its refusal to reduce the award for alleged
discovery violations by Concerned Citizens, and the amount of
fees awarded.
II. FACTS1 AND PROCEEDINGS
Steve Dike owned property in Eagle River that included
a private airstrip. In 1995 Dike petitioned the Municipality of
Anchorage to rezone the property to allow the conditional use of
the airstrip so he could develop the property as a fly-in
subdivision. The Planning Commission granted the conditional use
request and the Anchorage Assembly provisionally granted Dikes
rezoning request, requiring that he first file a plat in
conformity with his plans. No plat was filed, no further action
was taken, and the property was not rezoned. In 1997 Dike sold
half the property to John and Jennifer Cizek who planned to build
a home with an attached hangar and use the airstrip.
In 1998 Concerned Citizens of Eagle River Valley, Inc.
(Concerned Citizens) sued to enjoin Dike and the Cizeks from
using the airstrip, claiming that the nonconforming use right had
lapsed from non-use between 1985 and 1995. Superior Court Judge
Brian C. Shortell ruled in favor of Concerned Citizens, finding
that the nonconforming use right had lapsed. The Cizeks appealed
that determination to this court and we affirmed Judge Shortells
decision.
Immediately before trial, Concerned Citizens settled
with Dike, receiving $12,500 and waiving any other claim for fees
against him. Following trial with the Cizeks, Concerned Citizens
filed a motion for attorneys fees, asserting public interest
litigant status and claiming fees totaling $144,297.95.
Determining this amount to be unreasonable and observing the
absence of an adequate showing of specific services rendered, the
court denied Concerned Citizens motion and gave it sixty days to
address these deficiencies. Concerned Citizens filed a
reapplication for reasonable attorneys fees within the given time
frame, claiming total fees of $144,078.95. The Cizeks responded
with a summary of their fees to help determine the reasonableness
of Concerned Citizens claimed fees.
After an evidentiary hearing, Judge Shortell issued
detailed findings of fact and conclusions of law. The court held
that Concerned Citizens met the criteria for being a public
interest litigant but that the Cizeks did not, as they had
sufficient economic incentive to defend the suit even if the
action only involved narrow issues lacking general importance.
The court stated that, [a]lthough [Concerned Citizens] would
ordinarily be entitled to full fees against a governmental
entity, its strategic decision to litigate only against private
parties, its frivolous request for penalties, its use of the
penalty claim for coercive purposes, and its request for penalty
damages should either deprive it of public-interest status or the
right to an award of full reasonable fees. Judge Shortell
further stated that this court has never approved an award of
full fees against a private party based on the other partys
public interest litigant status.
Judge Shortell also found that Concerned Citizens was
entitled to a partial award of attorneys fees as the prevailing
party under Civil Rule 82(b). Determining the fees claimed by
Concerned Citizens to be excessive, the court used the $98,000
claimed by the Cizeks as the base amount reasonably incurred by
Concerned Citizens.2 The court then used Civil Rule 82(b) as a
guide in determining what percentage of this base amount the
Cizeks should be required to pay. It found that the extensive
and sometimes unduly repetitive motion practice generated by the
Cizeks attorney, the long duration of the trial, and the
reduction in fees incurred by Concerned Citizens due to the
performance of a number of paralegal tasks by its individual
members justified an order requiring the Cizeks to pay $40,000 in
fees. The court stated both that this award was an appropriate
partial public interest litigant fee and that if, on appeal, we
found that Concerned Citizens was not a public interest litigant,
the award would stand independently under Civil Rule 82(b)(3).
Both the Cizeks and Concerned Citizens appeal this
award.
III. STANDARD OF REVIEW
The trial courts decisions as to whether fees are
reasonable and should be awarded are reviewed for abuse of
discretion.3 An award constitutes an abuse of discretion only
when it is manifestly unreasonable.4 Legal questions involved in
exceptions to an award of attorneys fees are reviewed de novo,
while exceptions that rely on factual findings are reviewed for
clear error.5
IV. DISCUSSION
I. A. The Trial Courts Decision To Award Enhanced Partial
Fees to Concerned Citizens Was Proper.
1. The trial court did not err in holding the Cizeks
responsible for Concerned Citizens attorneys fees
despite the Cizeks reliance on the municipalitys
determination regarding the airstrip.
The Cizeks argue that because they were subject to suit
based on their reliance on the municipalitys determination that
the airstrip was a legal nonconforming use, they should not be
held liable for attorneys fees. The Cizeks argument rests
primarily on their substantive appeal they argue that the
superior court erred in holding that they could not reasonably
rely on the municipalitys decision.
The superior court ruled that the Cizeks did not
reasonably rely on the municipalitys decision finding the
airstrip to be a valid, nonconforming use and, even if such a
decision on the part of the municipality would estop the
municipality from enforcement, Concerned Citizens could not be
estopped from enforcing the zoning laws.6 We agreed with the
trial courts reasoning.7 As the Cizeks base their argument on
their substantive appeal, which we rejected, we likewise reject
their claim for relief from attorneys fees.
2. The trial court did not err in awarding attorneys fees to
Concerned Citizens although Concerned Citizens had no obligation
to pay its attorney.
1. The Cizeks argue that Concerned Citizens attorney, Suzanne
Ewy, donated her services and that Concerned Citizens was at no
point under an obligation to pay her. Because Concerned Citizens
did not incur any fees, the Cizeks argue that no fee award is
appropriate. We have held in several cases, however, that a
clients absence of obligation to pay for legal services rendered
does not preclude an award of attorneys fees under Civil Rule 82.8
Accordingly, the trial court did not err in awarding fees to
Concerned Citizens despite its lack of an obligation to
compensate its attorney.
3. The trial court did not give Concerned Citizens too many
opportunities or too much time to establish reasonable fees.
The Cizeks next argue that the trial court abused its
discretion in allowing Concerned Citizens additional time to
supplement its motion, to file a reply, and to reapply for fees.
Under Civil Rule 82(c), a motion for an award of attorneys fees
must be filed within ten days of the date of the distribution of
the final judgment. Failure to file within ten days, or such
additional time as the court may allow, is construed as a waiver
of the partys right to recover attorneys fees.9 We have held
that a trial court will not be found to have abused its
discretion in allowing a party additional time under Rule 82
unless the amount of time was unreasonable or resulted in
prejudice to the opposing party.10
Here, the trial court issued an order on January 31,
2000 stating that partial judgment had been entered on January 20
and giving Concerned Citizens twenty days to supplement its
earlier, premature request for an evidentiary hearing on its
public interest litigant status. Concerned Citizens supplemented
its motion on February 22.11 On March 7 Concerned Citizens
requested a stay of proceedings until March 21 and additional
time in which to file its reply to the Cizeks March 3 opposition.
The reply was filed on April 3. The trial court issued its order
on Concerned Citizens motion on September 15, denying the motion
and granting Concerned Citizens sixty days to address the
deficiencies identified by the court in its motion. Concerned
Citizens filed its reapplication within that time.
Given that the initial filing was early, that Concerned
Citizens filed the supplement requested by the court within the
specified time, and that all briefing was completed within one
month of the filing of the opposition to fees, the courts
provision of additional time cannot be said to have been
unreasonable, nor have the Cizeks demonstrated that it resulted
in any prejudice to them. We find that the court did not abuse
its discretion in granting Concerned Citizens additional time as
provided for by Civil Rule 82(c).
4. The trial court did not err in deciding that enhanced fees
were appropriate under Rule 82(b)(3).
The superior court awarded Concerned Citizens partial
fees based on the courts determination that Concerned Citizens
was a public interest litigant. In the alternative, the court
awarded Concerned Citizens enhanced partial fees under Civil Rule
82(b)(3). Because we affirm the courts decision to award partial
fees under Civil Rule 82, we do not reach the question whether
the award of fees based on Concerned Citizens public interest
litigant status was appropriate.
a. The Cizeks offer no basis for their argument that public
interest status was improperly used as a factor under Rule
82(b)(3).
The Cizeks first argue that the trial court improperly
considered the public interest nature of the case in awarding
enhanced fees to Concerned Citizens. The Cizeks offer no support
for their position that the court considered Concerned Citizens
status as a public interest litigant in awarding fees under Rule
82. Instead the Cizeks seem to rely on their arguments that
Concerned Citizens should not have been granted public interest
litigant fees in the first place. Because we find the trial
courts decision to award fees under Civil Rule 82(b) to be
adequately supported by the equitable factors it cites in its
decision and because the Cizeks point to no facts supporting
their theory that the court considered the public interest status
of Concerned Citizens as a factor in determining fees under Rule
82, we reject this argument.
b. The equitable reasons cited by the trial court support an
award of enhanced fees.
a. The Cizeks next argue that none of the reasons stated by the
court for enhancing attorneys fees supports its doing so. Under
Civil Rule 82(b)(2), in cases which have gone to trial but which
have not resulted in an award of money damages to the prevailing
party, the court is instructed to enter an award of 30 percent of
the prevailing partys reasonable actual attorneys fees which were
necessarily incurred. This award may be varied on the basis of
relevant equitable factors as provided in Civil Rule 82(b)(3).
In departing from the general rule, the court must state any
reasons for its variation from the prescribed percentage of fees.12
We review reasons relying on factual findings for clear error.13
In its order awarding Concerned Citizens partial
attorneys fees, the superior court cited several factors
justifying an increase under Civil Rule 82(b)(3):
Plaintiffs attorney was required to
participate in extensive and sometimes unduly
repetitive motion practice, most of it
generated by the Cizek[s] attorney, which
increased the complexity of the case, and
which, in most cases, was resolved in
plaintiff[s] favor. The trial was long in
duration, requiring many extra hours of work
that should be compensated. The plaintiffs
reduced their attorneys bills by performing a
number of paralegal tasks themselves.
The Cizeks argue that the length and complexity of the case will
be reflected in the fees themselves and therefore should not be
used to increase the percentage of fees awarded. However, these
factors are explicitly listed as permissible considerations under
Civil Rule 82(b)(3), and therefore are an appropriate basis for
the trial courts decision. According to Civil Rule 82(b)(3),
enhanced fees may be based on factors such as the complexity of
the litigation,14 the length of the trial,15 the reasonableness of
the claims and defenses pursued,16 and the relationship between
the amount of work performed and the significance of the matters
at stake.17 The Cizeks have not demonstrated that any of the
findings underlying the trial courts decision were clearly
erroneous.
Once these findings have been made, the only
requirement imposed on the trial court by the civil rules is that
the court explain the reasons behind any variation in the fee
schedule. The court retains broad discretion to award fees and
to alter the amount it intends to award.18 Because the court
clearly stated its reasons for enhancing the award of attorneys
fees to Concerned Citizens, we affirm its decision to award
enhanced fees under Rule 82.
c. The trial court did not err in declining to reduce the fees
awarded pursuant to Rule 82(b)(3).
Finally, with respect to the fee award, the Cizeks
argue that, rather than increasing the amount under Rule
82(b)(3), the trial court should have reduced the award to
Concerned Citizens on the basis of the above-discussed equitable
factors. The Cizeks contend that Concerned Citizens claimed an
unreasonable number of hours, did not attempt to minimize its
fees, pursued an unreasonable claim in bad faith, and attempted
to influence a non-party, the municipality, with its litigation.
Under Rule 82(b)(3), the court may vary a fee award
based on, among other things, the reasonableness of the number of
hours expended, the attorneys effort to minimize fees, the
reasonableness of the claims, bad faith conduct, the extent to
which a fee award may be so onerous that it would deter similarly
situated litigants from voluntary use of the courts, the extent
to which a partys claims suggest an influence apart from the case
at bar, and any other equitable factors the court deems relevant.19
Here, the court accounted for the unreasonableness of Concerned
Citizens fees by discounting its claimed fee altogether and
instead using the Cizeks fee as the basis for the award. In the
substantive appeal, we affirmed the lower courts decision, which
indicates our belief that Concerned Citizens pursued reasonable
claims in good faith.20
Again, the decision to award and to alter fees under
Rule 82 is committed to the discretion of the trial court and
will only be reversed if the court has abused its discretion.21
As Judge Shortells decision not to penalize Concerned Citizens
for the reasons argued by the Cizeks cannot be said to be
manifestly unreasonable, we reject the Cizeks position and affirm
the holding of the trial court.
B. The Trial Court Did Not Err in Calculating the Base Amount
of Concerned Citizens Reasonable, Actual Attorneys Fees.
The Cizeks argue that Concerned Citizens claimed fees
were excessive and unreasonable, requiring that the court assess
no fees against the Cizeks. However, there is no indication in
our case law that the proper response to an unreasonable fee
request is to deny an award altogether, and the Cizeks cite no
support for their argument.
Rather than relying on the fees submitted by Concerned
Citizens, the court substituted the Cizeks fees as the basis for
determining the fee award. The Cizeks now argue that the courts
use of their fees as a substitute for Concerned Citizens fees was
unfair and constituted an inaccurate account of the fees incurred
by Concerned Citizens.
In determining what constituted reasonable fees for
Concerned Citizens, the trial court stated that the amount
requested by Concerned Citizens (over $144,000) was excessive,
considering the moderately complex legal and factual issues
present. The court further found that the $108,000 charged by
the Cizeks counsel was also excessive. However, in light of the
aggressive litigation techniques employed by both sides, the
court decided to consider the Cizeks fee as the upper limit of
reasonableness. Given the broad discretion committed to the
trial court in determining what fees are reasonable,22 we affirm
its use of the Cizeks fees as a reasonable estimation of what Ewy
could have claimed for this litigation.
C. The Superior Court Did Not Err in Declining To Reduce the
Fee Awarded by Imposing Discovery Sanctions under Civil Rule
37(c)(2).
The Cizeks next argue that Concerned Citizens acted
unreasonably in refusing to admit that the airstrip was capable
of being used and was actually used between 1984 and 1995. On
this basis, they contend that the trial court should have granted
their Civil Rule 37(c)(2) motion for discovery sanctions against
Concerned Citizens for its refusal and that the award of
attorneys fees against them should have been offset by the amount
of the sanctions.
Civil Rule 37(c)(2) provides for an award of sanctions
in the form of attorneys fees where a party, in a request for
admission, refuses to admit the truth of any matter that is later
proven to be true.23 In this case, it was the responsibility of
the trial court to determine whether Concerned Citizens had a
reasonable basis for believing that the airstrip was unused and
unusable.24 That the airstrip was ultimately proven to be usable
does not necessarily mean it was unreasonable for Concerned
Citizens to refuse to admit that it was usable.
Here, Concerned Citizens presented evidence that the
airstrip was not used and was not usable during the period in
question, while the Cizeks offered the testimony of two pilots
who stated that they had used the airstrip every year during the
same period. Based on the conflicting testimony presented to the
court, it found that Concerned Citizens did not unreasonably
persist in its denial that the airstrip was capable of being used
and was actually used at least once each year between 1984 and
1995. The trial court did not err in refusing to offset the
attorneys fee award against the Cizeks by levying sanctions
against Concerned Citizens under Rule 37(c)(2).
D. The Trial Court Appropriately Accounted for Dikes Settlement
with Concerned Citizens.
Finally, the Cizeks argue that the superior court did
not reduce Concerned Citizens base fee amount by enough to
account for its settlement with Dike. They point to our decision
in Thorstenson v. ARCO Alaska, Inc.25 as authority for their
contention that Dikes participation in the case should have
resulted in a greater reduction in the fees awarded against the
Cizeks.
In Thorstenson, the trial court awarded fees to a
prevailing defendant after a co-plaintiff settled shortly before
the case was resolved.26 The trial court first estimated that
approximately 75% of the work would have had to have been done
had [defendant] been opposing but a single plaintiff.27 The court
then awarded the defendant seventy-five percent of that figure.28
We noted that there was, so to speak, an overlap in the work
performed in the defense of each plaintiffs claim.29 But the
trial courts methodology assigned to the remaining plaintiff the
entire amount of this overlap, with no explanation.30 We held
that each plaintiff should be charged with a proportional share
of the fees incurred prior to the resolution of his or her
claims, as charging the last remaining plaintiff with a grossly
disproportionate share of fees creates perverse incentives.31
Notably, we did not hold that attorneys fees must always be
equally apportioned, but rather that a remaining party may not be
asked to bear an unreasonably heavier burden of the cost of
litigation than a party who chooses to settle.32
Here, unlike in Thorstenson, the trial court made
specific findings to justify different treatment of the former co-
parties. The court determined that Concerned Citizens base
allowance for fees should be discounted by $10,000 to account for
its settlement with Dike for the following reasons:
This $10,000 figure is a fair estimate of
fees incurred solely against Dike[;] it
cannot be a precise determination. It is
relatively small because the Cizeks and Dike
litigated as a unit against [Concerned
Citizens], because the bulk of active
litigation involved the case against the
Cizeks, and because Dikes active efforts in
this case were small, compared to the Cizeks.
The first reason for the courts unequal apportionment that the
Cizeks and Dike litigated as a unit against Concerned Citizens
actually supports an equal apportionment of fees. However, the
courts second and third reasons for its apportionment provide
sufficient support for an unequal apportionment. The superior
court was in the best position to determine against whom
Concerned Citizens litigation efforts were focused, and it found
the bulk of active litigation efforts to be directed against the
Cizeks. The court separately found that Dikes active efforts
were small. This finding too supports an unequal apportionment.
Considering these factors, even if both Dike and the Cizeks had
proceeded to trial, the court would have been justified in
charging the Cizeks with a greater share of fees. Using as a
basis for calculation the approximately $77,000 found by the
superior court to have been incurred by Concerned Citizens before
trial, the superior courts apportionment of $10,000 to Dike and
award of $40,000 against the Cizeks in favor of Concerned
Citizens results in the Cizeks being responsible for
approximately fifteen percent more and Dike fifteen percent less
than a theoretically equal apportionment.33 We find the reasons
offered by the superior court for its unequal apportionment of
fees to be sufficient to justify this different treatment of the
defendants, and therefore reject the Cizeks argument that the
court did not adequately account for Concerned Citizens
settlement with Dike in calculating the Cizeks share of fees.
V. CONCLUSION
Because the trial court did not err either in the
framework in which it apportioned fees that is, in awarding
enhanced partial fees to Concerned Citizens, in calculating the
base amount of Concerned Citizens fees, and in declining to
reduce the award in the ways the Cizeks urged or in the amount
of fees awarded, we affirm its decision to award enhanced partial
attorneys fees under Civil Rule 82(b)(3).
_______________________________
1 The underlying facts in this opinion are taken from our
opinion in the substantive appeal, Cizek v. Concerned Citizens of
Eagle River Valley, Inc., 41 P.3d 140, 142 (Alaska 2002).
2 The Cizeks actually claimed $108,000 in fees, which the
court deemed the upper limit of fees that can be called
reasonable here. The court then discounted the Cizeks fees by
$10,000 to account for those fees incurred against Dike before he
settled.
3 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380
(Alaska 2001).
4 Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 376
(Alaska 1989).
5 Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000).
6 Cizek v. Concerned Citizens of Eagle River Valley,
Inc., 41 P.3d 140, 145 (Alaska 2002).
7 Id.
8 Arctic Slope Native Assn v. Paul, 609 P.2d 32, 38
(Alaska 1980) (discussing Gregory v. Sauser, 574 P.2d 445, 445
(Alaska 1978)).
9 Alaska R. Civ. P. 82(c).
10 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 397
(Alaska 2001).
11 Under Alaska Civil Rule 6(a), when the last day of a
filing period is a Saturday, Sunday or legal holiday, that day is
not counted and the last day of the filing period is shifted to
the next business day. Because February 20 was a Sunday and
February 21 was Presidents Day, a legal holiday, the filing on
February 22 was timely.
12 Alaska R. Civ. P. 82(b)(3).
13 Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000).
14 Alaska R. Civ. P. 82(b)(3)(A).
15 Alaska R. Civ. P. 82(b)(3)(B).
16 Alaska R. Civ. P. 82(b)(3)(F).
17 Alaska R. Civ. P. 82(b)(3)(H).
18 Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d 99,
102-03 (Alaska 1988).
19 Alaska R. Civ. P. 82(b)(3)(C), (E), (F), (G), (I), (J),
and (K).
20 Cizek v. Concerned Citizens of Eagle River Valley,
Inc., 41 P.3d 140, 147 (Alaska 2002).
21 Taylor Constr. Servs., 758 P.2d at 102.
22 Cf. Dansereau v. Ulmer, 955 P.2d 916, 918-19 (Alaska
1998) (upholding trial courts determination that time submitted
was unreasonable and favorably observing trial courts
substitution of reasonable time); Integrated Res. Equity Corp.
v. Fairbanks N. Star Borough, 799 P.2d 295, 304 (Alaska 1990)
(reserving decision whether too much time was spent by attorneys
for prevailing party to discretion of trial judge).
23 Alaska R. Civ. P. 37(c)(2) provides:
If a party fails to admit the . . . truth of
any matter as requested under Rule 36, and if
the party requesting the admission thereafter
proves . . . the truth of the matter, the
requesting party may apply to the court for
an order requiring the other party to pay the
reasonable expenses incurred in making that
proof, including reasonable attorneys fees.
The court shall make the order unless it
finds that (A) the request was held
objectionable pursuant to Rule 36(a), or (B)
the admission sought was of no substantial
importance, or (C) the party failing to admit
had reasonable ground to believe that the
party might prevail on the matter, or (D)
there was other good reason for the failure
to admit.
24 See Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000)
(explaining that it is province of trial court to examine record
and determine if reasonable foundation exists for partys belief
that it will prevail on particular issue).
25 780 P.2d 371 (Alaska 1989).
26 Id. at 376.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id. at 376-77.
32 Id.
33 Based on Judge Shortells calculations, Concerned
Citizens reasonable fees before settlement would have been
approximately $77,000. This represents seventy-one percent of
the total fee base of $108,000. If the court split this seventy-
one percent equally between the Cizeks and Dike, each would be
responsible for thirty-five and one-half percent of total fees.
Because only the Cizeks litigated after the settlement, they
would be responsible for all of the remaining twenty-nine
percent. Thus, the final award would have been apportioned sixty-
four and one-half percent to the Cizeks (thirty-five and one-half
percent plus twenty-nine percent) and thirty-five and one-half
percent to Dike. In that the court apportioned $10,000 of total
fees to Dike and ordered the Cizeks to pay $40,000, the Cizeks
actually incurred eighty percent of the total fee award. Thus,
Dikes apportioned share was about fifteen percent lower than
theoretically equal apportionment while the Cizeks share was
correspondingly about fifteen percent above equal apportionment.
