                            STATE OF MICHIGAN

                            COURT OF APPEALS
In re ATTORNEY FEES OF JOHN W. UJLAKY


PEOPLE OF MICHIGAN,                                                  UNPUBLISHED
                                                                     April 27, 2017
               Plaintiff,

v                                                                    No. 331067
                                                                     Berrien Circuit Court
THEODORE ONTONIO PRICE,                                              LC No. 2013-004730-FC

               Defendant,

and

JOHN W. UJLAKY

               Appellant.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

        Appellant, John Ujlaky, appeals as of right the trial court’s order granting only part of the
extraordinary attorney fees he requested for legal services rendered as defendant Theodore
Price’s court-appointed appellate counsel. Because Ujlaky failed to carry his burden of proving
his entitlement to additional extraordinary appellate attorney fees, we affirm.

                                     I. PERTINENT FACTS

        The trial court appointed Ujlaky as counsel for defendant’s appeal of his no-contest pleas
to unarmed robbery, MCL 750.530(1), and felony-firearm, MCL 750.227b. The trial court had
sentenced defendant to 71 months to 15 years’ imprisonment for unarmed robbery and two
years’ imprisonment for felony-firearm, and ordered him to pay a $750 fine, $1,000 in court
costs, $400 in restitution, a $130 victim’s rights fee, and $68 in state cost. Ujlaky filed a delayed
application for leave to appeal. In lieu of granting the application, this Court remanded the case
back to the trial court “for consideration of whether its imposition of $1,000 in court costs in the
judgment of sentence should be vacated in light of People v Cunningham, 496 Mich 145; 852




                                                -1-
NW2d 118 (2014).”1 On remand, the trial court affirmed its imposition of $1,000 in court costs,
but vacated its imposition of the $750 fine. Ujlaky then filed another application for leave to
appeal on his client’s behalf. In lieu of granting the application, this Court again remanded the
case “to the trial court to allow defendant to move for determination of whether costs imposed
were reasonably related to actual costs” in light of People v Konopka, 309 Mich App 345; 869
NW2d 651 (2015).2 On remand, the trial court found that the $1,000 court cost it had previously
imposed on defendant was reasonably related to the actual costs incurred by the court.

         Ujlaky then submitted a Michigan Appellate Assigned Counsel System (MAACS)
Statement of Service and Order for Payment of Court Appointed Counsel to the Berrien Circuit
Court. The Berrien County maximum for appeals involving plea agreements that do not go to
trial is $700. Ujlaky requested a total of $2,994.20 in fees, $354.20 of which were for expenses
and the remaining $2,640 were for attorney fees (52.8 hours x $50 per hour, the hourly rate set
by Berrien County). Ujlaky checked the box next to “Motion for extraordinary fees (attach
copy).” Below this box, Ujlaky wrote “See Attached Itemization,” and attached an itemized
billing list to his MAACS form. The trial court ordered Berrien County to pay Ujlaky $1,000 in
fees and $354.20 in expenses, for a total of $1,354.20.

         Ujlaky filed a motion for reconsideration of the trial court’s grant of only $300 in
extraordinary fees above the $700 maximum. Although his motion is not in the record submitted
on appeal to this Court, we glean from the trial court’s written order that Ujlaky argued, at least
in part, that the trial court failed to consider the reasonableness of the fees requested, and instead
shirked its duty to use its discretion by adhering too rigidly to the standard fee schedule. Ujlaky
also noted that, as things stood, the court would not incur any expense for Ujlaky’s services, as
the $1,000 in court costs imposed on defendant covered the entirety of Ujlaky’s awarded
professional fee.

        In denying Ujlaky’s motion for reconsideration, the trial court asserted that it had indeed
read and considered Ujlaky’s MAACS form and departed from the standard fee schedule, as
evidenced by the court’s decision to exceed the maximum fee for appeals by $300. The court
further noted that Ujlaky had failed to meet his burden to show where the court had committed a
palpable abuse of discretion, and that, but for the error, the court would have paid Ujlaky more.




1
 People v Price, unpublished order of the Court of Appeals, issued October 2, 2014 (Docket No.
323270).
2
 People v Price, unpublished order of the Court of Appeals, issued March 31, 2015 (Docket No.
325142).


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                                     II. ATTORNEY FEES

                                 A. STANDARD OF REVIEW

        Ujlaky’s sole argument on appeal is that the trial court erred by refusing to award him the
entire amount in extraordinary fees that he requested. We review for an abuse of discretion a
trial court’s determination regarding the reasonableness of compensation for services and
expenses of court-appointed attorneys. In re Foster, ___ Mich App ___, ___; ___ NW2d ___
(2016) (Docket No. 327707); slip op at 2. “An abuse of discretion occurs when the trial court’s
decision is outside the range of reasonable and principled outcomes.” Ronnisch Constr Group,
Inc v Lofts on the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016).

                                         B. ANALYSIS

        A court-appointed lawyer is entitled to reasonable compensation for representing an
indigent defendant on appeal. See Recorder’s Court Bar Ass’n v Wayne Circuit Court, 443 Mich
110, 122; 503 NW2d 885 (1993).3 “The party requesting an award of attorney fees bears the
burden of proving the reasonableness of the fees requested.” Adair v Michigan (On Fourth
Remand), 301 Mich App 547, 552; 836 NW2d 742 (2013) (quotation marks and citation
omitted). In Smith v Khouri, 481 Mich 519, 529; 751 NW2d 472 (2008), our Supreme Court
explained that the reasonableness of attorney fees depends on “the totality of special
circumstances applicable to the case at hand.” The Smith Court directed trial courts to consider
the factors laid out in Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653
(1982) and Michigan Rules of Professional Conduct (MRPC) 1.5(a) when determining the
reasonableness of requested fees. Smith, 481 Mich 529-530. The Smith Court also set forth the
procedure courts should use when applying these factors. Id. at 530-534.

        Ujlaky argues that the trial court abused its discretion by failing to employ the procedure
set forth in Smith or to consider any of the factors listed in Wood, Smith, or MRPC 1.5(a) before
denying his request for extraordinary fees. He relies on the Michigan Supreme Court’s favorable
decision in In re Attorney Fees of Ujlaky, 498 Mich 890; 858 NW2d 479 (2015) to argue that the
trial court was obligated either “to award the requested fees, or articulate on the record its basis
for concluding that such fees are not reasonable.”

       In order to properly analyze this case, it is helpful to consider how the appellate courts
have handled Ujlaky’s prior requests for extraordinary attorney fees in other criminal
assignments. In In re Ujlaky, unpublished opinion per curiam of the Court of Appeals, issued
October 23, 2014 (Docket Nos 316494, 316809), this Court affirmed the trial court’s denial of
Ujlaky’s request for an award of extraordinary fees in two separate cases. On September 30,


3
  Although “MCL 775.16 was recently amended and no longer explicitly provides that an
attorney appointed to represent an indigent appellant is entitled to reasonable compensation,” the
Michigan Supreme Court recently “referred to the reasonable compensation
requirement . . . which indicates that the requirement still exists.” In re Foster ___ Mich App at
___; slip op at 3 n 1.


                                                -3-
2015, the Supreme Court denied leave in Docket No. 316809, In re Ujlaky, 498 Mich 892; 869
NW2d 617 (2015)4, but it reversed this Court’s judgment in Docket No. 316494, In re Ujlaky,
498 Mich 890; 869 NW2d 624 (2015), and remanded for further evaluation by the trial court.

         In Docket No. 316809, after rendering appellate services, Ujlaky submitted a request for
attorney fees in the amount of $4,207.50 on a MAACS form, checked the box titled “Motion for
extraordinary fees (attach copy),” and “attached a statement of the hours expended and services
provided.” Ujlaky, unpub op at 7. He did not attach a motion to his MAACS form, nor did he
later file a motion for payment of extraordinary fees. The trial court authorized payment of the
maximum flat fee for that county of $660. This Court concluded that Ujlaky had failed to carry
his burden, reasoning: “Ujlaky did not attach a motion to the MAACS form as required and,
thus, never offered any explanation beyond a mere recitation of his proposed billing to the court
regarding the apparent extraordinary nature of the services rendered and the reasonableness of
the fees sought.” This Court denied appellate relief and the Supreme Court denied leave.

         In Docket No. 316494, Ujlaky followed the same procedure as set forth above, with one
critical exception. In addition to submitting a request for fees totaling $2,150.05 on a MAACS
form, checking the box titled “Motion for extraordinary fees (attach copy),” and attaching a
statement of hours expended and services provided, Ujlaky filed a formal motion, and the trial
court held a hearing on the matter. Id. at 2-3. This Court noted that, when denying the motion,
the trial court “failed to explicitly address whether the fees sought were both extraordinary and
reasonable.” Id. at 7. This Court also noted, however, that Ujlaky had “failed to explain how
the services rendered in the appeal in Docket No 312494 [sic] were of a character and an amount
beyond those normally required in a guilty-plea appeal.” Id. Accordingly, the Court denied
appellate relief. In lieu of granting leave, the Supreme Court reversed this Court’s judgment and
remanded the matter to the trial court “for a determination of the reasonableness of the attorney
fees requested[,]” explaining:

       The trial court applied the county’s fee schedule, which capped compensation for
       plea cases at $660, but did not address at all the reasonableness of the fee in
       relation to the actual services rendered, as itemized by the appellant. See In re
       Recorder’s Court Bar Ass’n, 443 Mich 110, 131; 503 NW2d 885 (1993).
       Although the expenditure of any amount of time beyond that contemplated by the
       schedule for the typical case does not, ipso facto, warrant extra fees, spending a
       significant but reasonable number of hours beyond the norm may. On remand,
       the trial court shall either award the requested fees, or articulate on the record its
       basis for concluding that such fees are not reasonable. See, e.g., In re Attorney
       Fees of Mullkoff, 176 Mich App 82, 85-88; 438 NW2d 878 (1989), and In re
       Attorney Fees of Jamnik, 176 Mich App 827, 831; 440 NW2d 112 (1989).

       Ujlaky relies on the Supreme Court’s decision in Docket No. 316494 to argue in the
present case that the trial court abused its discretion by denying the full amount of his fee request


4
 The Supreme Court also denied Ujlaky’s motion for reconsideration. In re Ujlaky, 499 Mich
859; 873 NW2d 557 (2016).


                                                -4-
without articulating the basis for its implied conclusion that the fees were not reasonable. As
noted, however, this case is distinguishable from the case remanded by the Supreme Court in
Docket No. 316494. Specifically, in the instant matter Ujlaky did not file a formal motion5 for
extraordinary fees and no hearing was held. Ujlaky failed to file a formal motion in Docket No.
316809, and even though this Court noted that “the circumstances of this case might suggest that
an award of extraordinary fees might have been in order” had he filed such a motion, Ujlaky,
unpub op at 7, the Supreme Court denied leave as well as a motion for reconsideration.

        The trial court’s obligation to apply the procedure set forth in Smith is not triggered in the
absence of a formal motion purporting to set forth authority for the extraordinary fees requested
and to justify the request by showing, not just the extra time and effort spent on the case, but that
the particular nature of the case necessitated such expenditure. In this way a requesting attorney
can meet his or her “ ‘burden of proving the reasonableness of the fees requested.’ ” Adair (On
Fourth Remand), 301 Mich App at 552, quoting Adair v Michigan (On Third Remand), 298
Mich App 383, 391; 827 NW2d 740 (2012), rev’d in part 494 Mich 852; 830 NW2d 383 (2013).

       This Court reached similar conclusions in In re Attorney Fees of Ujlaky, unpublished
opinion of the Court of Appeals, issued November 17, 2016 (Docket No. 329245), pp 4-5, and
more recently in In re Attorney Fees of Ujlaky, unpublished opinion of the Court of Appeals,
issued February 23, 2017 (Docket No. 330464), p 4.6 The burden to prove that the requested


5
    Pursuant to MCR 2.119(A)(1), motions should generally
         (a) be in writing,

         (b) state with particularity the grounds and authority on which it is based,

         (c) state the relief or order sought, and

         (d) be signed by the party or attorney as provided in MCR 2.114.

In addition, MCR 2.119(A)(2) requires that if the motion “presents an issue of law [the motion]
must be accompanied by a brief citing the authority on which it is based.”

6
  In Docket No. 330464, Ujlaky filed a MAACS form requesting additional fees and expenses.
He did not check the box on the MAACS form indicating that he was moving for extraordinary
fees, but he did file a “motion for payment of fees.” Id., unpub op at 2. In his motion for
additional fees, however, Ujlaky “merely argued that he was entitled to extraordinary fees
because he worked more hours than are ordinarily required, and he supported that assertion by
attaching an itemized billing statement.” Id. at 3. His only citation to authority was the
Supreme Court’s order in In re Ujlaky, 498 Mich 890. Id. In light of Ujlaky’s burden of proof
as set forth in the Supreme Court’s order, wherein it held that the mere “expenditure of any
amount of time beyond that contemplated by the schedule for the typical case does not, ipso
facto, warrant extra fees,” but that “spending a significant but reasonable number of hours
beyond the norm may,” this Court found inadequate Ujlaky’s motion because he failed to attach

                                                     -5-
extraordinary fees are reasonable rests on the person requesting the fees. Adair (On Fourth
Remand), 301 Mich App at 552. Billing statements alone are not sufficient to prove the
reasonableness of the fees requested, and a circuit court is not bound to accept them. See
Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33; 335 NW2d 710 (1983). They may
substantiate an attorney’s time spent and services performed, but they cannot show why the case
necessarily required such time and services. As we noted elsewhere, “[b]ased on the attached
document[s], the circuit court was left to find the authority either supporting or refuting Ujlaky’s
request, applying that authority to the facts, and then determining whether Ujlaky was legally
entitled to relief.” In re Ujlaky (Docket No. 329245), unpub op at 4; In re Ujlaky (Docket No.
330464), unpub op at 4.

         In the present case, although Ujlaky checked the box labeled “Motion for extraordinary
fees (attach copy)[,]” he did not attach a conforming motion for extraordinary fees. The billing
statements he attached did not provide the legal framework for his request or apply the relevant
facts to that framework for purposes of determining whether his requested fees were reasonable.
Therefore, because he did not carry his burden to show that the extraordinary fees he requested
were reasonable, Adair (On Fourth Remand), 301 Mich App at 552, the trial court did not abuse
its discretion in denying his request for the full amount of extraordinary fees requested.

        Ujlaky also raises two constitutional claims. First, he contends that the trial court’s
denial of the full amount of extraordinary fees requested violated state and federal prohibitions
against taking private property for public use without just compensation. Const 1963, art 10, § 2
and US Const, AM V. He urges this Court to do what some courts in other states have done and
determine that “ ‘attorneys’ services are property, and are thus subject to Fifth Amendment
protection.’ ” See, e.g., Ex Parte Brown, 393 SC 214, 222; 711 SE2d 899 (2011), quoting State v
Smith, 242 Kan 336, 370; 747 P2d 816 (1987). Having addressed this issue twice before, we
adopt and set forth this Court’s previous analysis as follows:

               Recently, this Court reiterated that a salary constitutes property, ATF Mich
       v State (On Remand), [315] Mich App[ 602, 621-625]; ___ NW2d ___ (2016),
       and “where government directly seizes property in which a person has a property
       interest, a Fifth Amendment taking occurs requiring the government to pay just
       compensation,” id. at [622]. But unlike that case, where the employees “had a
       contract based property right in their own wages,” id. [at 625], appellant’s
       compensation had yet to be determined. Indeed, pursuant to the trial court’s
       policy and relevant authority, the precise amount of that compensation was a
       matter to be determined after the work had been performed. [People v Timko,


a brief in support and left to the trial court the task of finding the particular authority that would
either support or refute his request for fees, applying that authority to the facts, and then
determining whether he was legally entitled to relief. Id, at 4. Put simply, Ujlaky cannot simply
check a box or file a cursory motion for additional fees without putting forth the requisite effort
to substantiate his request for extraordinary fees. He bears the burden of proof, and an itemized
billing statement alone is simply not enough, as it provides no grounds to discern whether his
services are reasonable or whether he is simply “milking” a file.


                                                 -6-
         unpublished opinion per curiam of the Court of Appeals, issued November 22,
         2016 (Docket No. 328374), unpub op at 3.]7

        Next, Ujlaky contends that the denial of fair and reasonable compensation has a
“prejudicial and chilling effect” on indigent defendants, as it forces qualified appellate advocates
“either to refuse court appointed appeals or compromise on the quality of their representation.”
He asserts that “[f]ewer available court appointed appellate practitioners could easily overburden
those left accepting court appointed appeals, which would risk a diminution in the quality of
representation.” Having also addressed this argument before, we adopt and set forth this Court’s
previous analysis as follows:

         Although the MIDCA[8] recognizes that a defendant’s right to the effective
         assistance of counsel may be impacted by “[e]conomic disincentives,” MCL
         780.991(2)(b), low pay for appointed counsel does not violate a defendant’s Sixth
         Amendment rights. In In re Meizlish, 387 Mich 228, 240; 196 NW2d 129 (1972),
         the Michigan Supreme Court, citing State v Rush, 46 NJ 399; 217 A2d 441
         (1966), stated:

                        We agree with the New Jersey court that an indigent defendant is
                 not deprived of his constitutional rights [“to the aid of counsel”9] by the
                 appointment of unpaid counsel. Dedication and diligence to a client’s
                 cause should not be altered because of the payment of a higher fee.
                 Judging by the numerous complaints received by the State Bar Grievance
                 Administrator, the payment of minimum fees does not insure the quality of
                 work from retained counsel. Most attorneys are dedicated and will
                 zealously protect the rights of any client they defend.

         [Timko, unpub op at 3-4.]

Accordingly, Ujlaky’s constitutional arguments are without merit.10

        For the reasons stated above, by his merely attaching detailed billing statements with no
correlative effort to explain the reasonableness of his requested fees under the particular


7
  Although unpublished opinions of the Court of Appeals are not binding precedent, MCR
7.215(C)(1), they may be considered instructive or persuasive. Adam v Bell, 311 Mich App 528,
533 n 1; 879 NW2d 879 (2015)
8
    Michigan Indigent Defense Commission Act, MCL 780.98 et seq.
9
    Rush, 46 NJ at 405.
10
   While we respect efforts to ensure that attorneys receive a reasonable fee when engaged in the
representation of indigent criminal defendants, the burden of proof remains with the requesting
attorney to establish the reasonableness of his or her fees when spending a significant but
reasonable number of hours beyond the norm. Efforts to raise the county maximums for such
fees must be handled in a different fashion than simply filing serial appeals.


                                                 -7-
circumstances of this case, we conclude that Ujlaky did not meet his burden of proving that the
extraordinary fees he requested were reasonable. Thus, we affirm the trial court’s award of fees
and expenses.

       Affirmed.



                                                           /s/ Jane M. Beckering
                                                           /s/ Jane E. Markey




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