Dejavue, Inc. v. U.S. Energy Corp.
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
Dejavue, Inc., a Utah
corporation;
Kristine C. Schultz; and
Allison Nord,
Plaintiffs, Appellee, and
Cross-appellant,
v.
U.S. Energy Corp., a Wyoming
corporation,
Defendant, Appellant, and
Cross-appellee.
OPINION
(For Official Publication)
Case No. 981772-CA
F I L E D
December 2, 1999
1999 UT App 355
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Third District, Salt Lake
Department
The Honorable Homer F. Wilkinson
Attorneys:
Merrill F. Nelson, Salt
Lake City, and Kenneth A.B. Roberts, Jr., Denver, Colorado, for Appellant
and Cross-appellee
Walter F. Bugden, James
E. Morton, Tara L. Isaacson, and Jeffery S. Williams, Salt Lake City, for
Appellee and Cross-appellant
-----
Before Judges Wilkins, Billings, and Orme.
WILKINS, Presiding Judge:
¶1.
Defendant, U.S. Energy Corp.,
appeals a jury verdict awarding plaintiff, Dejavue, Inc., $90,871 in compensatory
damages, $62,500 in punitive damages, and $91,668 in attorney fees. On
appeal, U.S. Energy claims the trial court abused its discretion in refusing
to either grant a judgment notwithstanding the verdict (JNOV) or order
a new trial. U.S. Energy also attacks the trial court's award of attorney
fees. Dejavue cross-appeals, claiming the trial court erred as a matter
of law in refusing to award it prejudgment interest on the jury award.
In addition, Dejavue requests attorney fees on appeal. We affirm and remand.
BACKGROUND
¶2.
U.S. Energy owns and operates
a mobile home park, convenience store, motel, restaurant and lounge in
Ticaboo, Utah, approximately ten miles from Lake Powell. In May 1995, U.S.
Energy subleased the restaurant and lounge facilities to Dejavue, Inc.
(Dejavue), a corporation with two shareholders, Allison Nord and Kristine
Schultz. Shortly thereafter, the parties agreed that Dejavue would also
oversee the mobile home park, convenience store, and motel, for which Dejavue
was to receive a $4,000 monthly management fee.
¶3.
In February 1996, problems
arose between the parties, ultimately resulting in the termination of Dejavue's
lease and the removal of Nord and Schultz as managers of the mobile home
park, convenience store, and motel. Thereafter, Dejavue, Nord, and Schultz
brought suit against U.S. Energy alleging various contract and tort claims.
U.S. Energy counterclaimed for breach of contract. Before trial, Schultz
abandoned her claims and therefore they were not presented to the jury.
¶4.
The case was tried in June
1998. At trial, Nord asserted a cause of action for intentional infliction
of emotional distress and Dejavue asserted claims for breach of contract,
forcible entry, unlawful detainer, conversion, misrepresentation, and unjust
enrichment. U.S. Energy asserted a counterclaim for breach of contract,
misrepresentation, contractual indemnification, and accounting. In order
to impeach one of U.S. Energy's witnesses, Dejavue offered into evidence
U.S. Energy's 1997 Annual Report (the report) "to demonstrate that U.S.
Energy conducted its business practices in a deceptive fashion." The trial
court admitted the report into evidence without objection from U.S. Energy.
¶5.
At the close of trial, the
case was submitted to the jury on general verdict forms, with a separate
general verdict form for Nord, Dejavue, and U.S. Energy on its counterclaim.
The jury returned one signed verdict form, awarding Dejavue $90,871 in
compensatory damages. Because the jury left the general verdict forms for
Nord and U.S. Energy blank, the trial court instructed the jury foreman
to enter zero as the amount of damages and sign both forms. After the jury
returned its compensatory award in favor of Dejavue, the jury deliberated
again and awarded Dejavue $62,500 in punitive damages. In post-trial proceedings,
the trial court refused to award Dejavue prejudgment interest on its compensatory
damage award, but concluded Dejavue was the prevailing party and entitled
to attorney fees under the sublease agreement.
¶6.
In August 1998, U.S. Energy
filed a motion for JNOV, or, in the alternative, for a new trial. U.S.
Energy argued the trial court erred in admitting U.S. Energy's 1997 Annual
Report and that the evidence was insufficient to support a punitive damage
award. The trial court denied U.S. Energy's motion. In October 1998, the
trial court entered findings of fact, conclusions of law, and an order
awarding Dejavue $90,871 in compensatory damages, $62,500 in punitive damages,
and $91,668 in attorney fees. This appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶7.
We address three issues
on appeal. First, we consider whether the trial court abused its discretion
in denying U.S. Energy's motion for JNOV or, alternatively, for a new trial.
When a party challenges the sufficiency of evidence underlying a trial
court's denial of a motion for JNOV or a new trial, "we reverse only if,
viewing the evidence in the light most favorable to the prevailing party,
the evidence is insufficient to support the verdict." Crookston v. Fire
Ins. Exch., 817 P.2d 789, 799 (Utah 1991). Furthermore, "the appealing
party 'must marshal the evidence in support of the verdict and then demonstrate
that the evidence is insufficient when viewed in the light most favorable
to the verdict.'" Heslop v. Bank of Utah, 839 P.2d 828, 839 (Utah
1992) (quoting Crookston, 817 P.2d at 799).
¶8.
Second, we address whether
the trial court correctly awarded attorney fees to Dejavue as the prevailing
party. Whether attorney fees are recoverable is a question of law which
we review for correctness. See Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). However, the trial court has "broad discretion
in determining what constitutes a reasonable fee, and we will consider
that determination against an abuse-of-discretion standard." Dixie State
Bank v. Bracken, 764 P.2d 985, 991 (Utah 1988).
¶9.
Finally, we address whether
the trial court erred in denying Dejavue's request for prejudgment interest
on its compensatory damage award. We review the award of prejudgment interest,
a question of law, under a correction of error standard. See Andreason
v. Aetna Cas. & Sur. Co., 848 P.2d 171, 177 (Utah Ct. App. 1993).
ANALYSIS
I. REFUSAL TO GRANT JNOV OR ORDER NEW TRIAL
¶10.
U.S. Energy claims two points
of error in the trial court's refusal to set aside the jury's verdict and
either grant a JNOV or order a new trial. First, U.S. Energy contends that
the trial court improperly admitted evidence concerning its financial condition
during the compensatory damages phase of the trial. Second, U.S. Energy
argues the jury failed to make the requisite finding of willful and malicious
conduct necessary to support an award of punitive damages. We address each
point in turn.
A. Evidence of U.S.
Energy's Financial Condition
¶11.
Section 78-18-1 of the Utah
Code provides that evidence of a party's wealth or financial condition
is inadmissible until a finding of liability for punitive damages has been
made. See Utah Code Ann. § 78-18-1(2) (1996). This rule is
intended to prevent juries from being improperly influenced by a party's
wealth in assessing compensatory damages--damages which should be based
solely on losses, not the losing party's ability to pay. See Ong
Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 456 (Utah 1993).
In this case, Dejavue introduced U.S. Energy's 1997 Annual Report during
the compensatory damage phase of the trial, before a finding of liability
for punitive damages had been made. Although the report was offered for
impeachment purposes, it contained financial information regarding U.S.
Energy's assets and net worth. However, U.S. Energy did not object to the
admission of the report. It is well settled that issues not raised before
the trial court are waived on appeal. See State v. Schreuder,
726 P.2d 1215, 1222 (Utah 1986) (stating in order "[t]o preserve a contention
of error in the admission of evidence for appeal, a defendant must raise
a timely objection in the trial court"). Because U.S. Energy failed to
preserve the issue of admission of the report by raising a timely objection,
we decline to further address this argument.
B. Sufficiency of the
Evidence
¶12.
Because U.S. Energy's challenge
to the jury's punitive damages award amounts to an attack on the sufficiency
of the evidence, it "must marshal all evidence supporting the verdict"
and then show that the evidence cannot support the verdict. Von Hake
v. Thomas, 705 P.2d 766, 769 (Utah 1985). "The burden on an appellant
to establish that the evidence does not support the jury's verdict . .
. is quite heavy." Cambelt Int'l Corp. v. Dalton, 745 P.2d 1239,
1242 (Utah 1987).
¶13.
In this case, U.S. Energy
has failed to meet this burden. U.S. Energy has not marshaled the evidence
upon which the jury could have based a finding of willful and malicious
conduct, nor has it argued that this evidence was insufficient to support
the jury's punitive damage award. U.S. Energy ignores evidence that it
forcibly removed Dejavue from the leased premises, as well as evidence
that it failed to negotiate the motel management agreement in good faith.
Finally, U.S. Energy overlooks evidence that it converted Dejavue's restaurant
equipment and used it for two years without Dejavue's consent.
¶14.
Instead, U.S. Energy merely
states those facts most favorable to its position and ignores the contrary
evidence. This is not adequate. See Promax Dev. Corp. v. Mattson,
943 P.2d 247, 255 (Utah Ct. App. 1997). We have shown no reluctance to
affirm the jury's verdict when a party fails to meet its marshaling burden.
See,
e.g., Wright v. Westside Nursery, 787 P.2d 508, 514 (Utah Ct.
App. 1990). Accordingly, we assume the record supports the jury's verdict
and refuse to consider U.S. Energy's claim of insufficient evidence.
C. Finding of Willful and Malicious Conduct
¶15.
U.S. Energy also challenges
what it considers to be the trial court's failure to require a specific
finding of willful and malicious conduct on its part by the jury prior
to consideration of the amount of punitive damages to be awarded. However,
U.S. Energy concedes that it failed to object to the procedure followed
by the trial court in this regard, or to object to the jury instructions
given by which the jury learned of its responsibilities in considering
the requested award of punitive damages.
¶16.
Having failed to object
at trial, U.S. Energy may not now complain. See VanDyke v. Mountain
Coin Mach. Distribs., Inc., 758 P.2d 962, 964 (Utah Ct. App. 1988)
("If a party fails to object to a jury instruction, the objection is deemed
waived on appeal."). As U.S. Energy also conceded at oral argument, the
jury instructions given on this issue were sufficient to instruct the jury
on the law. We assume the jury followed those instructions. SeeState
v. Burk, 839 P.2d 880, 883 (Utah Ct. App. 1992) ("In the absence of
the appearance of something persuasive to the contrary, we assume that
the jurors were conscientious in performing to their duty, and that they
followed the instructions of the court." (citations omitted)). Accordingly,
we find no error in the absence of a specific, pre-damages finding by the
jury of willful and malicious conduct on the part of U.S. Energy.
II. ATTORNEY FEES
¶17.
U.S. Energy also challenges
the trial court's award of attorney fees to Dejavue as the prevailing party.
Specifically, U.S. Energy argues; (1) the sublease agreement does not provide
a basis for awarding Dejavue attorney fees; (2) Dejavue cannot establish
that it prevailed on a breach of contract claim; and (3) in any event,
the fees are excessive. We disagree.
A. Sublease Agreement
¶18.
The sublease agreement between
the parties specifically provides that in the event of default by Dejavue,
U.S. Energy shall have the right to recover reasonable attorney fees and
costs. Utah law provides for the reciprocal right to recover attorney fees,
and permits a court to award attorney fees to either party prevailing in
an action based on a written contract, when the contract permits at least
one party to recover such fees. See Utah Code Ann. § 78-27-56.5
(1996). However, "attorney fees authorized by contract are awardable only
in accordance with the explicit terms of the contract." Maynard v. Wharton,
912 P.2d 446, 451 (Utah Ct. App. 1996). Thus, under the terms of the sublease
agreement and pursuant to Utah law, Dejavue is clearly entitled to an award
of attorney fees if it indeed prevailed on either its own breach of contract
claim, or in defending against U.S. Energy's breach of contract counterclaim.
B. Breach of Contract Claims
¶19.
The jury returned a general
verdict awarding Dejavue $90,871 in compensatory damages. Because the general
verdict form did not identify the specific claims on which the award was
based, we are unable to determine whether Dejavue prevailed on its breach
of contract claim. However, with respect to U.S. Energy's counterclaim
for breach of contract, the jury returned a "no cause of action" verdict
in Dejavue's favor. Thus, although it is uncertain whether Dejavue prevailed
on its breach of contract claim, Dejavue was clearly successful in defending
against U.S. Energy's breach of contract counterclaim.
¶20.
Where a contract provides
the "right to attorney fees, Utah courts have allowed the party who successfully
prosecuted or defended against a claim to recover the fees attributable
to those claims on which the party was successful." Occidental/Nebraska
Fed. Sav. v. Mehr, 791 P.2d 217, 221 (Utah Ct. App. 1990). Furthermore,
when a plaintiff brings multiple claims involving a common core of facts
and related legal theories, and prevails on at least some of its claims,
it is entitled to compensation for all attorney fees reasonably incurred
in the litigation. See Hensley v. Eckerhart, 461 U.S. 424,
435, 103 S. Ct. 1933, 1940 (1983). "However, a plaintiff must, at a minimum,
be a prevailing party with respect to a portion of the litigation in order
to receive fees." Stewart v. Donges, 979 F.2d 179, 183 (10th Cir.
1992); see Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th
Cir. 1996) ("If claims are related, failure on some claims should not preclude
full recovery if plaintiff achieves success on a significant, interrelated
claim."); Durant v. Independent Sch. Dist. No. 16, 990 F.2d 560,
566 (10th Cir. 1993) (stating because plaintiff's "claims arose out of
a common core of facts and involved related legal theories, the district
court may . . . conclude her prevailing party status on . . . [one] claim
subsumes her failure to succeed [on the other.]"); Sprouse v. Jager,
806 P.2d 219, 226 (Utah Ct. App. 1991) ("Because these complex issues were
so intertwined, we find the court acted within its discretion in its award
of attorney fees").
¶21.
In the present case, Dejavue
successfully defended against U.S. Energy's breach of contract counterclaim.
Accordingly, Dejavue is entitled to attorney fees under the sublease agreement.
Furthermore, Dejavue's contract and tort claims were based on related legal
theories involving a common core of facts. The trial court specifically
found that
the claims advanced
by Dejavue, and interposed as defenses to the counterclaims, were based
on inter-related legal theories and arose from a common core of facts.
. . . Each of Dejavue's claims submitted to the jury was intertwined with
its defense of the breach of contract . . . counterclaims and arose from
a common core of facts.
U.S. Energy does not dispute
these factual findings and therefore, we accept them as true. SeeC &
Y Corp. v. General Biometrics, Inc., 896 P.2d 47, 52 (Utah Ct. App.
1995) ("Because appellants do not challenge the trial court's factual findings,
we must accept this finding as true."). Accordingly, we affirm the trial
court's conclusion that Dejavue is the prevailing party in this case and
entitled to "attorney fees incurred in presenting all of its legal theories."
C. Reasonableness of Attorney Fees
¶22.
We now consider whether
the fees awarded to Dejavue were reasonable. Calculation of reasonable
attorney fees is within the sound discretion of the trial court, so long
as the fees are supported by the evidence in the record. See Baldwin
v. Burton, 850 P.2d 1188, 1199 (Utah 1993). Among the factors to be
considered by the trial court in considering the reasonableness of the
fee are "the extent of services rendered, the difficulty of the issues
involved, the reasonableness of time spent on the case, fees charged in
the locality for similar services, and the necessity of bringing an action
to vindicate rights." Id. at 1200. The trial court considered these
factors, prepared written findings supporting its action, and ultimately
awarded Dejavue slightly less than three quarters of the fees it sought.
¶23.
In this case, the trial
court's determination that the attorney fees awarded were reasonable is
amply supported by the evidence. Dejavue submitted attorney fee affidavits
that included detailed billing statements. Additionally, Dejavue submitted
the expert affidavits of three local attorneys specializing in civil litigation
who attested to the reasonableness and necessity of Dejavue's fee request.
U.S. Energy, in turn, failed to offer any evidence to refute the reasonableness
of Dejavue's fee request. Because the record supports the trial court's
award of attorney fees, we cannot say the trial court clearly exceeded
its permitted discretion in awarding Dejavue $91,668 in attorney fees.
Therefore, we affirm the trial court's ruling on this issue.
III. CROSS-APPEAL
¶24.
Dejavue cross-appeals the
trial court's refusal to award prejudgment interest. Under Utah law, prejudgment
interest may be awarded to provide full compensation for actual loss. SeeCanyon
County Store v. Bracey, 781 P.2d 414, 422 (Utah 1989). The award is
proper if the loss is fixed at a definite time and the interest can be
calculated with mathematical accuracy. See Coalville City v.
Lundgren, 930 P.2d 1206, 1212 (Utah Ct. App. 1997). However, because
of the lack of mathematical certainty, prejudgment interest is typically
not allowed in actions seeking equitable relief such as unjust enrichment.
See
Shoreline Dev., Inc. v. Utah County, 835 P.2d 207, 211 (Utah Ct.
App. 1992); see also James Constructors v. Salt Lake City,
888 P.2d 665, 671 n.4 (Utah Ct. App. 1994) (stating "Utah courts have upheld
the denial of prejudgment interest in actions seeking . . . unjust enrichment");
Bailey-Allen Co., Inc. v. Kurzet, 876 P.2d 421, 427 (Utah Ct. App.
1994) (concluding "even if quantum meruit is awarded on remand, no prejudgment
interest should be awarded").
¶25.
In this case, one of the
five causes of action Dejavue submitted to the jury was an unjust enrichment
claim. Although the jury awarded Dejavue $90,871 in compensatory damages,
the general verdict form did not identify the specific claims on which
the award was based. While an award of prejudgment interest might well
be appropriate under the breach of contract claim, such an award is highly
problematic with respect to the forcible entry, unlawful detainer, and
conversion claims. However, it would never be appropriate for the unjust
enrichment claim presented here. In this case, the trial court had no way
of knowing under which theory or theories of liability the jury awarded
its verdict. Thus, it was impossible for the trial court to determine to
what extent, if any, the jury's damage award was based on Dejavue's unjust
enrichment claim--a claim which is not subject to an award of prejudgment
interest. SeeShoreline Dev., Inc., 835 P.2d at 211 (rejecting claim
for prejudgment interest on unjust enrichment award). Under these circumstances,
because of the lack of mathematical certainty, we conclude the trial court
correctly denied Dejavue prejudgment interest.
IV. ATTORNEY FEES ON APPEAL
¶26.
Finally, Dejavue, having
prevailed below, and again on appeal, requests attorney fees incurred in
connection with this appeal. Such an award is clearly within the contemplation
of the sublease agreement. See Management Servs. Corp. v. Development
Assocs., 617 P.2d 406, 409 (Utah 1980) (ruling provision in contract
providing for attorney fees includes attorney fees incurred by the prevailing
party on appeal). Accordingly, we award Dejavue reasonable attorney fees
incurred on appeal, and remand for the limited purpose of determining the
amount of those fees.
CONCLUSION
¶27.
We conclude the trial court
properly denied U.S. Energy's motion for JNOV, or, in the alternative,
for a new trial. U.S. Energy failed to object to the admission of the report.
Also, because U.S. Energy failed to properly marshal the evidence supporting
the jury's punitive damage award, we decline to disturb those findings.
Further, we hold that under the sublease agreement, Dejavue was the prevailing
party and entitled to "attorney fees incurred in presenting all of its
legal theories." Moreover, we conclude that the trial court's award of
attorney fees was reasonable and that the trial court properly denied Dejavue's
request for prejudgment interest. Finally, we award Dejavue attorney fees
on appeal, and remand for a determination of the amount of those fees.
¶28.
Affirmed and remanded.
______________________________
Michael J. Wilkins,
Presiding Judge
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I CONCUR:
______________________________
Judith M. Billings, Judge
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I CONCUR, EXCEPT THAT AS
TO SECTION II(A) & (B), I CONCUR ONLY IN THE RESULT:
______________________________
Gregory K. Orme, Judge
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