Morris v. Parkinson

----ooOoo----

Michael Morris,
Elizabeth Morris,
and John Covey,
Plaintiffs and Appellees,

v.

Dan Parkinson,
Cynthia Parkinson,
Linda Hatch, and Guy Hatch,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991027-CA

F I L E D
March 8, 2001 2001 UT App 69 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Jr.

Attorneys:
Stephen Quesenberry, Provo, for Appellants
Mark O. Morris, Salt Lake City, for Appellees

-----

Before Judges Greenwood, Jackson, and Davis.

JACKSON, Associate Presiding Judge:

Appellants raise twenty issues on appeal that roughly fit into four categories: first, whether the evidence supports the findings of fact; second, whether the trial court abused its discretion in making evidentiary rulings; third, whether the trial court applied the correct law; and fourth, whether the trial court erred in awarding attorney fees to Appellees.(1) We affirm and remand for a determination of attorney fees on appeal.

First, issues six and seven challenge the sufficiency of the evidence supporting factual findings by the jury. A challenge to factual findings requires the appellant to marshal the evidence. See Utah R. App. P. 24(a)(9) ("A party challenging a fact finding must first marshal all record evidence that supports the challenged finding."). Appellants' fleeting treatment of these issues did not include any marshaling of evidence. Thus, we affirm these jury findings. See Young v. Young, 1999 UT 38,¶30, 979 P.2d 338 (stating that when appellant fails to marshal evidence "we assume that the evidence adequately supported the finding").

Second, in issues two and nine through eighteen, Appellants challenge the trial court's evidentiary rulings for abuse of  discretion. A "trial court has a great deal of discretion in determining whether to admit or exclude evidence, and its ruling will not be overturned unless there is an abuse of discretion." Gorostieta v. Parkinson, 2000 UT 99,¶14, 410 Utah Adv. Rep. 39. We cannot say the trial court abused its discretion in any of these evidentiary rulings. Thus, we affirm them. We decline to address issue nineteen, which also challenges an evidentiary ruling, because Appellants failed to cite any legal authority supporting their position. SeeSmith v. Smith, 1999 UT App 870,¶8, 995 P.2d 14 ("Briefs that are not in compliance with rule 24 may be disregarded or stricken sua sponte by the court."). Appellants assert cumulative error as the basis for issue twenty. We are not "convinced that the impact of [possible] . . . minor errors that [may have] occurred during the trial implicates the cumulative error doctrine." State v. Kohl, 2000 UT 35,¶36, 999 P.2d 7.

Third, we address Appellants' issues one, three, and eight, which challenge the trial court's denial of Appellants' motions for partial summary judgment, judgment notwithstanding the verdict, and new trial. Issue three fails to cite any legal authority as required by Utah Rules of Appellate Procedure 24(a)(9), thus, we decline to address the argument. See Smith, 1999 UT App 870 at ¶8. With issues one and eight, Appellants attempted to limit the scope of the express warranties of the Real Estate Purchase Contract (Contract). Here, Appellants warrantied "all workmanship, habitability, systems of all kinds, and roof for a period of two years." These warranties are sufficiently broad, both in scope and in time, to include some, if not all, of the items disputed by Appellants. Further, "[w]hether there was a breach of warranty is a question of fact," Emerson-Brantingham Implement Co. v. Giles, 59 Utah 54, 202 P. 543, 544 (Utah 1921), and the fact is disputed, thus summary judgment is precluded. See Utah R. Civ. P. 56(c) (stating summary judgment requires, among other things, that there be "no genuine issue as to any material fact"). Accordingly, the trial court correctly denied these motions.

Having disposed of the other issues raised in Appellants' brief, we now turn to issues four and five which address attorney fees.(2) In Maynard v. Wharton, 912 P.2d 446 (Utah Ct. App. 1996), we discussed whether attorney fees could be awarded if they arose from a real estate purchase contract which contained exceptions in its abrogation clause. In Maynard, the earnest money agreement contained an attorney fees clause, as well as an abrogation clause which stated, "[e]xcept for express warranties made in this Agreement, execution and delivery of final closing documents shall abrogate this agreement."(3) Id. at 450. This clause did not mention attorney fees, and "the only basis for attorney fees that sellers presented to the trial court was the earnest money agreement." Id. at 451. We discussed the merger doctrine and its exceptions. See id. Then we stated, "attorney fees may be awarded under the instant contract only when one party can show that the other party has defaulted on an explicit covenant or agreement contained in the earnest money agreement," as was required to trigger the right to attorney fees. Id. at 452.

In Maynard, the sellers had not established "that buyers had defaulted on any covenant or agreement and thus [had] no basis for an award of attorney fees." Id. Here, Appellees established that Appellants breached warranties in the Contract which survived closing. Accordingly, attorney fees can be awarded pursuant to the terms of the Contract. See id. Thus, we affirm the trial court's award of attorney fees.

In summary, we affirm the trial court on all issues presented by Appellants, and remand for a determination of attorney fees incurred on appeal.
 
 
 
 

 
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

 
Pamela T. Greenwood,
Presiding Judge
 
 
 

 
James Z. Davis, Judge

1. Due to the number of issues, we will refer to them by number, according to Appellant's brief.

2. Appellants argue the attorney fees provision was not excepted by the abrogation clause in the Contract and thus did not survive closing. Appellants cite a long line of cases for the proposition that collateral warranties survive only if excepted from an abrogation clause, but fail to mention that in every case cited, either the abrogation clause in the purchase contracts were general in nature and allowed no exceptions, or the opinion did not address attorney fees. Thus, while these cases address the merger doctrine, they do not control on explicit exceptions to the merger doctrine, nor on attorney fees.

3. The abrogation clause in this case was similar: "Except the express warranties made in this Contract, the provisions of this Contract shall not apply after Closing."