Pollesche v. Mntn Tech

----ooOoo----

Siegfried Pollesche
and Sheryl Holmes,
Plaintiffs and Appellees,

v.

Mountain Tech Mill & Cabinet, Inc.,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000930-CA

F I L E D
July 11, 2002 2002 UT App 233 -----

Third District, Salt Lake Department
The Honorable Glenn Iwasaki

Attorneys:
James I. Watts, Salt Lake City, for Appellant
Bryon J. Benevento, Salt Lake City, for Appellees -----

Before Judges Bench, Davis, and Orme.

BENCH, Judge:

Mountain Tech first argues that the trial court erred in refusing to allow Ms. Holmes to testify as a rebuttal witness. The trial court found that the testimony of Ms. Holmes would be cumulative and that her testimony lacked foundation for an appropriate rebuttal witness because "she is not a carpenter [and] does not have specific expertise and . . . ability to compare exactly what she may have viewed in the display [on the showroom floor, with] what was in her home . . . ." During its case in chief, Mountain Tech called two expert witnesses to testify about the quality of materials used in construction of the cabinets and to compare the cabinets in the home with those found on the showroom floor. Based on their backgrounds, these witnesses were qualified to discuss such matters and the jury was free to give whatever weight it felt was proper to their testimony. See Andreason v. Aetna Cas. & Sur. Co., 848 P.2d 171, 177 (Utah Ct. App. 1993); see also Utah R. Evid. 701-703. "'The matter of proper foundation or qualification of a witness to state a conclusion, an opinion or an impression, where the same is permissible in evidence, lies largely in the sound discretion of the trial court . . . .'" In re Estate of Kesler, 702 P.2d 86, 94 (Utah 1985) (citation omitted) (alteration in original). Rebuttal testimony by Ms. Holmes, as to the subjects Mountain Tech intended, was not required. Ms. Holmes was a "lay witness" who did not understand the "standard quality and standard building and construction materials of cabinets." The absence of her testimony on these issues was therefore not likely to affect the verdict.

The remaining issues concern the award of attorney fees and whether the findings were adequate to support the award. "Whether attorney fees are recoverable in an action . . . [and] whether the trial court's findings of fact . . . [are sufficient to] support . . . an award of fees" are both questions of law that we review for correctness. Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). "'[A]ttorney fees are awardable only if authorized by statute or by contract.'" Softsolutions, Inc. v. Brigham Young Univ., 2000 UT 46,¶41, 1 P.3d 1095 (citation omitted). The contract at issue provided for the recovery of attorney fees for Mountain Tech. Plaintiffs are therefore entitled to recover their attorney fees pursuant to Utah Code Ann. § 78-27-56.5 (2001).

The trial court entered specific findings in regard to the factors mentioned in Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah 1988). Specifically, the trial court found that the legal work was actually performed, that for the most part, it was reasonably necessary to adequately prosecute the matter, that the attorneys' billing rates were consistent with the rates customarily charged in the locality for similar services, and that this was not a case that was overly complicated, except for the need to respond and to compel defendants throughout litigation, . . . . The trial court also took into consideration the results reached versus the efforts expended, and even reduced Plaintiffs' request for attorney fees because the case was not overly complicated and associates did not need to be so involved. Furthermore, Plaintiffs' counsel submitted a detailed affidavit and billing statements as discussed in Dixie State Bank. See id. at 987-990. In the application for attorney fees, Plaintiffs' attorney explicitly stated that the "fees and/or costs associated with the fraud claim" were not included and the billing statements specifically outlined the time spent on each matter. Appellant does not refute the assertion that no fees attributable to the fraud claim were included in the fees submitted to the court. Thus, we find no merit in Mountain Tech's contention that the attorney fee award improperly included time spent by Plaintiffs' attorneys in pursuing the fraud claim. We conclude that the trial court properly exercised its broad discretion in awarding Plaintiffs $24,000 in attorney fees. See id. at 988.

Finally, we have considered Mountain Tech's contention that the trial court erred in denying its own submission for attorney fees and find the contention to be without merit. Mountain Tech argues that it should have received an award of attorney fees for prevailing on the summary judgment entered against Plaintiffs on their fraud claim. This claim was not based on the contract or on a statute that provided for attorney fees. Therefore, attorney fees could not be recovered for this aspect of the litigation, regardless of which party prevailed. See Foote v. Clark, 962 P.2d 52, 56 (Utah 1998).

Accordingly, we affirm the judgment of the trial court. As requested, Plaintiffs are awarded reasonable fees for this appeal. See Management Servs. v. Development Assocs., 617 P.2d 406, 409 (Utah 1980) (adopting the rule that "a provision for payment of attorney's fees in a contract includes attorney's fees incurred by the prevailing party on appeal as well as at trial"). The case is remanded for a determination of the amount of attorney fees awarded on appeal.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge