C.E. Butters Realty v. McFarland

C.E. Butters Realty v. McFarland

IN THE UTAH COURT OF APPEALS

----ooOoo----

C.E. Butters Realty and Construction, Inc., dba Butters Construction,

Plaintiff, Appellant, and Cross-appellee,

v.

Robert McFarland, Trustee; Renae W. McFarland, Trustee; Tim Bovee; et al.,

Defendants, Appellees, and Cross-appellants.

 

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020571-CA
 

F I L E D
(June 10, 2004)
 

2004 UT App 196

 

-----

Second District, Ogden Department

The Honorable Pamela G. Heffernan

Attorneys: Joseph M. Chambers, Logan, for Appellant and Cross-appellee

J. Paul Stockdale, Ogden, for Appellees and Cross-appellants

-----

Before Judges Billings, Davis, and Orme.

DAVIS, Judge:

C.E. Butters Realty and Construction, Inc. (Butters) appeals the trial court's decision and judgment. Robert McFarland, Renae W. McFarland, and Tim Bovee (collectively, Defendants) cross-appeal. We affirm in part, and reverse and remand in part.

In support of their appeal and cross-appeal, both parties challenge several of the trial court's findings of fact. Butters challenges those concerning the number of loads delivered to the site, including the trial court's finding that the expert testimony presented by Butters "was conflicting and not helpful to the [c]ourt in determining the number of loads delivered . . . to the site." Defendants challenge several respecting compaction of the site. "A party challenging a fact finding must first marshal all record evidence that supports the challenged finding." Utah R. App. P. 24(a)(9); see West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (explaining marshaling burden in detail). Although both parties recognize the obligation to marshal the evidence in support of challenged findings, both have misapprehended the scope of this obligation and, as a result, failed to fulfill it. Instead, each party simply reargues the evidence supporting its respective position and asserts that the trial court ignored or disregarded this evidence.

These arguments are "nothing but an attempt to have this [c]ourt substitute its judgment for that of the trial court on . . . contested factual issue[s]. This we cannot do under Utah Rule of Civil Procedure 52(a)." Covey v. Covey, 2003 UT App 380,¶28, 80 P.3d 553 (first alteration in original) (quotations and citations omitted), cert. denied, 2004 Utah LEXIS 86 (Utah Apr. 1, 2004); see ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997). Therefore, both parties' challenges to the trial court's factual findings fail.

Defendants also attempt to argue that the trial court erred by dismissing their counterclaims. Defendants' five-sentence argument on this issue is devoid of any meaningful analysis and is not based upon any legal authority. Accordingly, we conclude that this argument is inadequately briefed, and we do not address it. See Utah R. App. P. 24(a)(9); State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (stating that rule 24(a)(9) requires an argument to contain "reasoned analysis based on [legal] authority").

Defendants' final argument, which concerns the type of road base used on the site, fails for two reasons. First, like the previous argument, it is inadequately briefed because it does not contain any meaningful analysis and is not based upon any legal authority. See Utah R. App. P. 24(a)(9); Thomas, 961 P.2d at 305. Second, although Defendants appear to be making a factual argument, they do not challenge, or even reference, any of the trial court's factual findings. Instead, Defendants reargue the evidence supporting their position on this issue, which, as we have already established, is an unavailing tactic on appeal. See ProMax Dev. Corp., 943 P.2d at 255 ("To succeed in its challenge to findings of fact, [an appellant] may not simply reargue its position based on selective excerpts of evidence presented to the trial court.").

Butters argues that the trial court erred by ruling that it was not entitled to recover its attorney fees and costs incurred after the date of Defendants' offer of judgment. Butters prevailed on its cause of action to enforce its mechanics' lien, and the trial court ruled that Butters was "the prevailing and/or successful party." Accordingly, the trial court ruled that Butters was entitled to recover reasonable attorney fees and costs incurred in enforcing its mechanics' lien.(1) See Utah Code Ann. § 38-1-18(1) (2001).(2) However, the trial court ruled that the judgment obtained by Butters was less favorable than Defendants' offer of judgment and, therefore, pursuant to rule 68 of the Utah Rules of Civil Procedure, Butters was entitled to recover its reasonable attorney fees and costs incurred up to the date of Defendants' offer of judgment, but not those incurred after that date. See Utah R. Civ. P. 68(b).

Butters asserts that Defendants' offer of judgment was inadequate under rule 68 because it did not include the disposition of all claims pending in the case. We agree. The underlying purpose of rule 68 "is to encourage the settlement of litigation without trial." 20 Am. Jur. 2d Costs § 19 (1995). Defendants' offer of judgment in this case made no reference to Butters's lien claim or the counterclaims against Butters. As such, it did not offer to dispose of all pending claims and, therefore, did not propose to "settle[] [the] litigation without trial." Id. Because Defendants' offer was inadequate to invoke the provisions of rule 68, it was inappropriate for the trial court to rely upon rule 68 to limit Butters's attorney fees and costs to those incurred before the date of the offer.(3) We remand to the trial court with instructions to revisit Butters's attorney fee and cost award, and consider Butters's reasonable attorney fees and costs incurred in enforcing its mechanics' lien, regardless of whether they were incurred prior to or after the date of Defendants' offer of judgment.(4)

Finally, both parties request attorney fees incurred on appeal. "This court has interpreted attorney fee statutes broadly so as to award attorney fees on appeal where a statute initially authorizes them. In addition, when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (quotations and citations omitted). The trial court ruled that Butters was "the prevailing and/or successful party" at trial and we conclude that Butters is the prevailing party on appeal. Accordingly, we conclude that Butters is entitled to reasonable attorney fees incurred on appeal, in an amount to be determined by the trial court on remand. See id.; Brown v. David K. Richards & Co., 1999 UT App 109,¶¶25-27, 50, 978 P.2d 470; Brown v. Richards, 840 P.2d 143, 156-57 (Utah Ct. App. 1992); see also Dixie State Bank v. Bracken, 764 P.2d 985, 989-90 (Utah 1988). In determining this amount, the trial court may consider that Butters was unsuccessful on appeal in challenging the trial court's factual findings. See Mountain States Broad. Co. v. Neale, 783 P.2d 551, 556 n.10, 557 n.11 (Utah Ct. App. 1989).(5)

We affirm the trial court's decision and judgment, with the exception of its rulings concerning the adequacy of Defendants' offer of judgment under rule 68 and Butters's attorney fee and cost award. We remand for the limited purpose of revisiting Butters's attorney fee and cost award in a manner consistent with this decision.

______________________________

James Z. Davis, Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Gregory K. Orme, Judge

1. Defendants challenge this ruling by asserting that they did not receive proper notice of the mechanics' lien, as required by statute. See Utah Code Ann. § 38-1-7(4) (2001). However, Defendants have not demonstrated that this issue was preserved in the trial court and they do not argue plain error or exceptional circumstances; therefore, we decline to address the issue. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996).

2. Because the relevant portion of this statute was unchanged by the 2001 amendment, we cite to the most current version for convenience.

3. Our conclusion on this issue makes it unnecessary for us to address Butters's other arguments concerning Defendants' offer of judgment and the trial court's rulings thereon. Further, it is dispositive of Defendants' argument that they were entitled to an award of their attorney fees and costs incurred after the date of their offer of judgment, pursuant to rule 68 of the Utah Rules of Civil Procedure and the mechanics' lien statute. See Utah Code Ann. § 38-1-18(1) (2001).

4. We note the trial court's observations from its June 2002 ruling that, as of the date of that ruling, counsel for both parties had accumulated "massive attorney fees" and that "it [was] clear that this case may be more about collecting attorney[] fees than in prosecuting a mechanics['] lien action." Our decision today should not be interpreted as a rejection of the trial court's concerns. Instead, on the facts of this case, those concerns should be addressed in the context of whether the fees were both reasonable and reasonably incurred, rather than in the context of rule 68. See Dixie State Bank v. Bracken, 764 P.2d 985, 989-90 (Utah 1988) (providing guidelines for trial courts in determining reasonableness of attorney fees for purposes of attorney fee awards).

5. Butters also argues that it is entitled to prejudgment interest. Because Butters raised this argument for the first time in its reply brief, we decline to address it. See Utah R. App. P. 24(c); Hart v. Salt Lake County Comm'n, 945 P.2d 125, 139 n.9 (Utah Ct. App. 1997) ("[B]ecause this argument was raised for the first time in [the] reply brief, we decline to address it.").