Cameron v. Kelly

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Cameron & Company, Inc.,
dba Cameron Construction Company,
a Utah corporation,
Plaintiff and Appellee,

v.

Nick Kelly dba NK Welding,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010202-CA

F I L E D
October 3, 2002 2002 UT App 320 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Carvel R. Shaffer and David J. Shaffer, Bountiful, for Appellant
Jeffery R. Price, Michael E. Bostwick, and Craig T. Jacobsen, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Orme.
BENCH, Judge:

Appellant first argues that the trial court erred in its assessment of damages. "Because the adequacy of damages is a question of fact, we cannot overturn the trial court's findings unless they are clearly erroneous." In re Estate of Knickerbocker, 912 P.2d 969, 981 (Utah 1996). The trial court found that "there's certainly evidence that there were problems on the east side." However, the trial court was unable to allocate the actual costs of repairs on the east side because the roof was already installed. Because of this difficulty, the trial court determined that all of the costs, other than the overhead costs, were "fair and reasonable." In arguing against the trial court's damage award, Appellant has not "demonstrate[d] that the evidence is legally insufficient to support the findings . . . [when viewed] in the light most favorable to the court below." Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 899 (Utah 1989). Instead, Appellant has merely reargued on appeal the same damage calculation he urged at trial. Therefore, we cannot conclude that the trial court's damage award "is against the clear weight of the evidence." Id. at 899-90.

Next, Appellant argues that the trial court erred in awarding Cameron attorney fees. "The general rule in Utah is that . . . a party is entitled to attorney fees only if authorized by statute or by contract." Meadowbrook, L.L.C. v. Flower, 959 P.2d 115, 117 (Utah 1998). The trial court awarded attorney fees to Cameron and Amsco pursuant to Utah Code Ann. § 38-1-18 (2001) and Utah Code Ann. § 14-2-2 (2001). Appellant argues that Cameron is not entitled to attorney fees based on these statutes because Cameron cannot be the prevailing party in the mechanics' lien and payment bond actions because it was not a named party to either action. We disagree. While it is true that Appellant filed his mechanics' lien and payment bond actions against Amsco, evidence was presented to the trial court of an indemnification agreement between Cameron and Amsco intended to cover these types of actions. At trial, Appellant produced no evidence in support of his counterclaim, but if he had, then Cameron, not Amsco, would have been required to defend against it. The evidence supports the trial court's conclusion that Cameron is the successful party in the lien and payment bond actions, whether that success was achieved through a decision on the merits after presentation of a defense, or through failure to prosecute by the lien claimant. See, e.g., Kurth v. Wiarda, 1999 UT App 335,¶9, 991 P.2d 1113. Therefore, we conclude that the trial court properly awarded attorney fees to Cameron.

Appellant also argues that the attorney fees awarded to Cameron should be apportioned between the breach of contract action and the mechanics' lien action. The trial court specifically found that the lien filed by Appellant was the "primary focus of the litigation," and that the facts in the breach of contract action were "inextricably connected to the lien." Thus, Cameron could not successfully prosecute its breach of contract claim without also defending against Appellant's counterclaim; nor could Cameron have avoided foreclosure on the mechanics' lien had it been unsuccessful in the breach of contract action. Therefore, having found that the two actions were inextricably intertwined, the trial court properly awarded Cameron all of its claimed attorney fees. See First Gen. Servs. v. Perkins, 918 P.2d 480, 486 (Utah Ct. App. 1996) (noting close connection between counterclaims and principal lien claim "for the purpose of awarding attorney fees under the mechanics' lien statute").

Finally, Appellant argues that the trial court erred in denying his motion for reconsideration. Appellant's briefing on this issue is inadequate for our review because it does not contain "citations to the authorities, statutes, and parts of the record relied on." Utah R. App. P. 24(a)(9). Thus "the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court." Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (quotations and citation omitted). Consequently, we decline to address this issue.

Cameron was awarded attorney fees pursuant to statute as the prevailing party below and is, therefore, also entitled to them on appeal. See R&R Energies v. Mother Earth Indus., 936 P.2d 1068, 1081 (Utah 1997). Accordingly, we affirm the judgment of the trial court and remand to the trial court for a determination of the reasonable costs and fees incurred on appeal.
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge