Interwest Const. v. Palmer

Interwest Construction, a Utah
corporation,

Plaintiff and Appellant,

v.

R. Roy Palmer and Val W. Palmer dba A.H. Palmer & Sons,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981276-CA

F I L E D
June 17, 1999
  1999 UT App 198 -----

First District, Logan Department
The Honorable Gordon J. Low

Attorneys:
Steven D. Crawley, Salt Lake City, for Appellant
Robert R. Wallace, Salt Lake City, and George W. Preston, Logan, for Appellees

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Before Judges Greenwood, Billings, and Orme.

ORME, Judge:

The subcontract places no conditions on final payment. It simply states that "[f]inal payment shall be due when the work described in this subcontract is fully completed and performed in accordance with the contract documents and is satisfactory to the architect." The trial court correctly determined that Interwest breached the subcontract when it refused final payment to Palmer after Palmer's work had been completed and accepted.

Moreover, the trial court's findings that Palmer performed the subcontract according to Thiokol's specifications and that the most likely cause of the tank failure was overfilling by Thiokol are the law of the case and cannot be challenged in this appeal. See 4447 Assocs. v. First Sec. Fin., 973 P.2d 992, 996 (Utah Ct. App. 1999). Provisions of the subcontract that condition the rights and responsibilities of the parties on Palmer's breach of the subcontract, or on Interwest suffering damages as a result of Palmer's incomplete performance of the contract, are inapplicable. The trial court properly determined that Palmer's duty to indemnify, defend, and hold Interwest harmless never arose.

Having correctly determined that Interwest breached the subcontract, the trial court correctly awarded attorney fees to Palmer under Utah Code Ann. § 78-27-56.5 (1996). Nor did the trial court err in ruling that Palmer's defense of Interwest's breach of contract claims was "attributable to the successful vindication of contractual rights within the terms of [the] agreement" between the parties. Trayner v. Cushing, 688 P.2d 856, 858 (Utah 1984) (per curiam).

Contrary to the trial court's characterization, Interwest could not properly have been awarded attorney fees as against Thiokol. However, the court's misstatement--which it had once previously corrected--appears, in context, to have been incidental rather than a pivotal basis for its decision.

Interwest is not entitled to attorney fees for prosecuting its claim for indemnity against Palmer. Even an indemnitee who succeeds in proving its right to indemnification "may not recover attorney fees incurred in establishing the right to indemnity," absent contractual language so providing. James Constructors, Inc. v. Salt Lake City Corp., 888 P.2d 665, 673 (Utah Ct. App. 1994) ("[A]n indemnitee may recover only those attorney fees reasonably incurred in defending the claim indemnified against; the indemnitee may not recover attorney fees incurred in establishing the right to indemnity.").

Finally, because Palmer has once again prevailed on all claims between the parties, it is entitled to its attorney fees reasonably incurred on this appeal. See, e.g., First Gen. Servs. v. Perkins, 918 P.2d 480, 488 (Utah Ct. App. 1996). We therefore remand to the trial court for a determination of those fees and for the award of such fees. Otherwise, the orders appealed from are affirmed.
 
 

______________________________
Gregory K. Orme, Judge

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WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Judith M. Billings, Judge