                                                                FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit

                                                            April 4, 2012
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                            Clerk of Court
                          FOR THE TENTH CIRCUIT


THOMAS R. HUTCHINSON,
individually and as former member of
Roberts, Marrs & Carson,

            Plaintiff-Appellee/
            Cross-Appellant,

and                                            Nos. 11-5089 & 11-5090
                                         (D.C. No. 4:05-CV-00453-TCK-PJC)
C. CLAY ROBERTS, III, individually                   (N.D. Okla.)
and as former member of Roberts,
Marrs & Carson; DENNIS P.
BULLARD; ROBERT J. BULLARD;
BARBARA L. LAWRENZ; RUTH
ANN LIBBY; KATHRYN M.
ROBINSON; JOHN M. SPANTON,

            Plaintiffs,

v.

MARTHANDA J. BECKWORTH;
ATKINSON, HASKINS, NELLIS,
BRITTINGHAM, GLADD &
CARWILE,

            Defendants-Appellants/
            Cross-Appellees,

and

BONNIE J. HAHN, Personal
Representative of the Estate of Robert
H. Hahn, deceased; BAMBERGER,
FOREMAN, OSWALD AND HAHN;
BAMBERGER, FOREMAN,
OSWALD AND HAHN, L.L.P.;
    LOCKE REYNOLDS BOYD &
    WEISELL; WALTER DEWEY
    HASKINS; ATKINSON, HASKINS,
    NELLIS, HOLEMAN,
    BRITTINGHAM, GLADD &
    CARWILE, P.C.; KENNEDY
    GALLERIES, INC.; CINCINNATI
    MUSEUM ASSOCIATION; BUTLER
    INSTITUTE OF AMERICAN ART;
    EARLE J MAIMAN; THOMPSON
    HINE & FLORY LLP,

                   Defendants.

    ------------------------------

    JOAN GODLOVE,

                   Attorney-Appellee/
                   Cross-Appellant.


                                     ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                              -2-
      In Appeal No. 11-5089, defendants-appellants/cross-appellees Marthanda J.

Beckworth and Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C.

(“Beckworth and Atkinson, Haskins”) appeal from the district court’s order

denying their supplemental motion for attorney’s fees. We reverse and remand to

the district court for further proceedings. In Appeal No. 11-5090, plaintiff

Thomas R. Hutchinson and his counsel Joan Godlove (“Hutchinson and

Godlove”) appeal from the district court’s award of appellate attorney’s fees.

We affirm.

                                 BACKGROUND

      As we explained in our most recent previous decision in this case, “the

underlying lawsuit is part of a relentless and wholly unsuccessful effort to

establish ownership of certain paintings of American Impressionist artist

Theodore Robinson.” Hutchinson v. Hahn, 402 F. App’x 391, 393 (10th Cir.

2010). “The effort began some thirty years ago and has continued largely

unabated, most recently with Ms. Godlove and her clients filing lawsuits against

past-defendants and new ones including lawyers and law firms that have prevailed

against them.” Id. The most recent previous appeal, which produced the order

awarding appellate fees, concerned Hutchinson and Godlove’s unsuccessful

attempt to overturn the district court’s order sanctioning them for their conduct in

the underlying suit.




                                        -3-
       After we remanded the case, the district court ordered defendants to “file

their time records and any affidavits in support of their [appellate] fee application

by February 2, 2011. Plaintiffs shall submit any objections to specific time

entries/charges by February 14, 2011.” Aplee. Supp. App. at 35.

       Defendants complied with the district court order by submitting their time

records and affidavits. For their part, on February 14, 2011, Hutchinson and

Godlove filed their “Preliminary Objection to Requested Award of Appellate Fees

and Costs.” Id. at 78-79. This document contained no objections to specific time

entries or charges in the materials submitted by defendants. Rather, Hutchinson

and Godlove gave “notice of their intent to cross-examine persons called as

witnesses to support [plaintiffs’] request [for appellate fees] and present the

testimony of other persons with personal knowledge of relevant facts.” Id. at 78.

They announced that

       [o]nce the parties have presented their conflicting evidence on the
       requested award during an evidentiary hearing, those who are targets
       of that award will be in a position to set forth their written objections
       with specificity. Upon completion of the hearing transcript, they will
       also be able to support those objections with citations to evidence in
       the record[.]

Id. at 79.




                                          -4-
      Meanwhile, Beckworth and Atkinson, Haskins filed their supplemental

motion for fees. 1 They asserted that “[s]ince the time of the order assessing

[district court] sanctions, the Defendants have incurred additional expenses in the

defense of this litigation at the trial court level.” Aplt. App. at 164. Beckworth

and Atkinson, Haskins noted they had been “forced to respond to motions to alter

or amend the judgment, objections to the magistrate’s orders, and objections to

the asset hearing as well as other frivolous and meritless filings of the Plaintiffs

and Ms. Godlove.” Id. They requested additional attorney’s fees of $11,556.50

and additional costs of $260.00 for this work in the district court.

      The magistrate judge assigned to the case filed a report and

recommendation. He first recommended that the supplemental motion be denied

because it was “untimely and this Court lacks jurisdiction to hear [it]” owing to

the filing of Hutchinson and Godlove’s notice of appeal in No. 09-5144 on

October 16, 2009. Aplee. Supp. App. at 82. The magistrate judge concluded that

“[t]he decision of the Tenth Circuit on Nov. 24, 2010, brought this litigation to an

end” and that only the question of appellate attorney’s fees had been remanded to

the court and was currently before it for resolution. Id. at 82-83.


1
      In addition to Beckworth and Atkinson, Haskins’ supplemental motion,
defendants David T. Kasper and Lock Reynolds filed a separate motion seeking
supplemental attorney’s fees and costs. The district court denied the
Kasper/Reynolds motion for the same reasons it denied the motion at issue in this
case. Kasper/Reynolds have not appealed from the judgment denying their
supplemental motion.

                                         -5-
      Turning to the appellate fee question, the magistrate judge rejected

Hutchinson and Godlove’s attempt to postpone their objections to the fee request

until after an evidentiary hearing had been held. It opined that “[n]o hearing is

required” when the court determines a fee award pursuant to Fed. R. App. P. 38.

Aplee. Supp. App. at 84. Given the lack of specific objections from Hutchinson

and Godlove, the district court decided to determine the appropriate fee amount

based on the record submitted by the defendants. After striking 0.2 hours’ worth

of time from the fee requests, it recommended that defendants be awarded a total

amount of $32,507.50 against Hutchinson and Godlove, jointly and severally.

After considering objections filed by both the defendants and Hutchinson and

Godlove, the district court adopted the magistrate judge’s recommendation and

entered judgment accordingly. 2

                                     ANALYSIS

      Appeal No. 11-5089

      In denying Beckworth and Atkinson, Haskins’ supplemental motion for fees

and costs, the district court determined that it lacked jurisdiction to entertain the



2
       Defendants’ counsel had requested that the amount sought be divided
equally between Kasper/Reynolds and Beckworth and Atchinson, Haskins, as the
total attorney fee and expenses had been equally divided for billing purposes
between these defendants. See Aplee. Supp. App. at 42. The district court did
not divide the sum requested in its judgment in this fashion but gave a combined
judgment in favor of all defendants seeking fees for the full amount. Aplt. App.
at 211-12.

                                          -6-
motion because a notice of appeal had been filed, divesting it of jurisdiction over

this case. At the time the magistrate judge made this statement, on February 18,

2011, this court had already issued its order in the previous appeal remanding for

calculation of appellate attorney’s fees. Order, Hutchinson v. Hahn, No. 09-5144

(10th Cir. Jan. 11, 2011) (reprinted at Aplt. App. at 136-37). A mandate (dated

December 20, 2010) and supplemental mandate (dated January 11, 2011) had

issued from this court, divesting us of appellate jurisdiction and returning

jurisdiction to the district court. See Burton v. Johnson, 975 F.2d 690, 693

(10th Cir. 1992). Thus, even if the district court had lost jurisdiction by virtue of

the filing of Hutchinson and Godlove’s notice of appeal, it would have reacquired

jurisdiction over the case upon issuance of our mandate, before it ruled on the

supplemental motion. See id.

      But in reality, the district court never lost jurisdiction in the first place over

the issue of fees and costs as a sanction for continued vexatious conduct in the

district court. A notice of appeal divests the district court of jurisdiction over

matters involved in the appeal, but it retains jurisdiction to consider collateral

matters such as sanctions. Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228,

1237 (10th Cir. 1998). Thus, the district court retained jurisdiction to entertain

Beckworth and Atkinson, Haskins’ motion even while the appeal was pending.

      Nor did our mandate purport to address or limit the district court’s

discretion to rule on the motion. See Procter & Gamble Co. v. Haugen, 317 F.3d

                                          -7-
1121, 1126 (10th Cir. 2003) (“Although a district court is bound to follow the

mandate, and the mandate controls all matters within its scope, . . . a district court

on remand is free to pass upon any issue which was not expressly or impliedly

disposed of on appeal.” (quotation marks omitted)). While we did state in our

previous decision that “[w]e cannot emphasize strongly enough to Ms. Godlove

and the Plaintiff that this litigation is at an end,” Hutchinson, 402 F. App’x at 397

(emphasis added), this statement should in no way be understood as an attempt to

impose a limitation on the district court’s ability to order any further relief

necessary to protect the defendants from abusive litigation tactics.

      Given the district court’s misconception concerning its jurisdiction to

award the fees and costs sought by Beckworth and Atkinson, Haskins, we reverse

the judgment denying the supplemental motion for fees and costs and remand for

further proceedings. 3




3
       The magistrate judge also opined that the supplemental motion was
“untimely.” Aplt. App. at 183. He provided no separate analysis of the alleged
untimeliness. It is unclear to what extent the magistrate judge’s untimeliness
finding was intertwined with his erroneous conclusion that he could no longer
award fees for district court work because Hutchinson and Godlove had filed a
notice of appeal. Beckworth and Atkinson, Haskins have presented considerable
argument purporting to show that their supplemental request should not have been
denied as untimely. See Aplt. Opening Br. at 17-20. On remand, the district
court is free to reconsider the timeliness issue as necessary.

                                          -8-
      No. 11-5090 4

      We review the district court’s award of attorney’s fees for an abuse of

discretion, considering its findings of fact under a clear error standard and its

legal conclusions de novo. Browder v. City of Moab, 427 F.3d 717, 719

(10th Cir. 2005). As noted, Hutchinson and Godlove made no specific objection

to the hours or amounts sought in Beckworth and Atkinson, Haskins’ itemized

submission concerning appellate attorney’s fees and costs. Nevertheless, they

object to the district court’s award.

      First, Hutchinson and Godlove argue that they were entitled under due

process principles to an evidentiary hearing at which they could cross-examine

Beckworth and Atkinson, Haskins’ witnesses concerning the appropriate amount



4
       Beckworth and Atkinson, Haskins previously sought dismissal of this
appeal, arguing that Hutchinson and Godlove had failed to comply with the filing
restrictions we imposed in the prior appeal. See Hutchinson, 402 F. App’x at 397.
We ordered that this appeal would proceed, but we cautioned Hutchinson and
Godlove to “restrict their argument to the amount of the attorneys’ fee award.”
Order, Hutchinson v. Hahn, No. 11-5090, at 2 (10th Cir. Aug. 1, 2011).
Beckworth and Atkinson, Haskins now argue that Hutchinson and Godloves’
appeal should be dismissed because their argument for an evidentiary hearing
exceeds this restriction and represents an attempt to reassert their unsuccessful
evidentiary hearing argument from the previous appeal. See Hutchinson,
402 F. App’x at 395.

      We deny this renewed request for dismissal. Hutchinson and Godloves’
“evidentiary hearing” argument, while lacking in merit, at least tangentially
concerns the “amount of the attorney fee award.” Moreover, it differs from
Hutchinson and Godlove’s previous argument concerning the need for an
evidentiary hearing in connection with district court sanctions.

                                         -9-
of fees and costs. They cite no authority holding that due process requires an

evidentiary hearing whenever the appropriate amount of fees and costs to be

awarded to a litigant is at issue. Nor have our prior cases recognized such a

requirement. Rather, the decision to rely upon affidavits and the record of a case

rather than to conduct an evidentiary hearing lies within the district court’s

discretion. Cramer v. United States, 47 F.3d 379, 382 (10th Cir. 1995)

(addressing application for litigation costs against the government).

      “[A]n evidentiary hearing is generally preferred, if not required, when

factual disputes exist in connection with a request for attorney fees and costs and

those disputes cannot be resolved without a hearing.” Id. at 383 (emphasis added).

Here there was no indication that any factual disputes existed that required a

hearing for resolution. Cf. Hutchinson, 402 F. App’x at 395 (rejecting

Hutchinson and Godlove’s request for additional evidentiary hearing concerning

sanctions issues where they “simply did not make any type of proffer at the

hearing, nor have they indicated how any such evidence would make a material

difference.”). Thus the district court did not abuse its discretion in determining

the amount of fees without an evidentiary hearing.

      Hutchinson and Godlove also argue that the district court’s award is not

supported by any competent evidence in the record. They contend that the district

court erred in basing its award entirely upon the figures contained in Beckworth

and Atkinson, Haskins’ “hearsay” affidavits. Hutchinson and Godlove cite no

                                        -10-
authority from this circuit rejecting the use of affidavits to prove the amount of

fees based on hearsay grounds. As we have noted, the district court’s

determination that affidavits are an appropriate means of determining the amount

of fees in a given case is reviewed for an abuse of discretion, and we discern no

abuse of discretion here.

                                  CONCLUSION

      In Appeal No. 11-5089, we REVERSE the district court’s order denying

defendants Beckworth and Atkinson, Haskins’ supplemental motion for attorney’s

fees and REMAND for further proceedings. In Appeal No. 11-5090, we AFFIRM

the district court’s order awarding appellate attorney’s fees.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




                                         -11-
