Thornton, Trustee; et al., v. Goodman, et al.

----ooOoo----

Russell B. Thornton,
Trustee; et al.,
Plaintiff and Appellee,

v.

Truthanne Goodman, et al.,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990143-CA

F I L E D
May 2, 2002 2002 UT App 143 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Wynn E. Bartholomew, Salt Lake City, for Appellant
James H. Deans, Salt Lake City, for Appellee -----

Before Judges Bench, Davis, and Thorne.

BENCH, Judge:

Defendant contends that the trial court erred when it awarded Plaintiff an equity lien against the property. The trial court awarded the lien after finding that Plaintiff had paid $75,110 on behalf of Defendant to her mortgage holders. "We uphold a lower court's findings of fact unless the evidence supporting them is so lacking that we must conclude the finding is 'clearly erroneous.'" Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998). Defendant argues that the trial court's finding that the documents were forged meant there could be no equitable mortgage, and, therefore, no equity lien. However, Defendant does not directly address the challenged finding. Defendant offers us no analysis or citation to the record to contravene the court's finding that Plaintiff expended the awarded amount on behalf of Defendant. Thus, we conclude that the trial court's finding is not clearly erroneous.

Second, Defendant argues that the trial court's failure to award her more in special damages, and any general and punitive damages, was clearly erroneous. "We review the trial court's decision to award damages under a standard which gives the court considerable discretion, and will not disturb its ruling absent an abuse of discretion." Lysenko v. Sawaya, 1999 UT App 31,¶6, 973 P.2d 445. In reviewing the trial court's findings, we recognize that the trial judge sits in an advantaged position, having heard the evidence and evaluated the credibility of the witnesses. Although the trial court's findings here are brief, the damages suffered by Defendant are set out in detail and are supported by the evidence in the record. We cannot say that the trial court abused its discretion simply because the damage award is less than the amount Defendant requested.

Defendant also argues that the trial court erred when it declined to award her attorney fees. Defendant correctly states the well-established rule that attorney fees are generally recoverable only where provided for by contract or statute. SeeTurtle Mgmt. v. Haggis Mgmt., 645 P.2d 667, 671 (Utah 1982). The trial court found, and we agree, that there was no valid contract between the parties. Defendant argues that an award may be made pursuant to Utah Code Ann. § 78-27-56 (1996), because the action was brought in bad faith and was without merit. An award of attorney fees based on bad faith is "a matter within the discretion of the trial court, . . . and appellate deference is owed to the trial judge who actually presided over the proceeding and has first-hand familiarity with the litigation." Utah Dep't. of Soc. Serv. v. Adams, 806 P.2d 1193, 1197 (Utah Ct. App. 1991). The trial court made no finding of bad faith or lack of merit. In light of the fact that the trial court's intention in ruling as it did was to place both parties in their original position, we cannot say Plaintiff's claim was so lacking in merit or good faith that the trial court abused its discretion in declining to award attorney fees.

Defendant argues that the trial court committed error because there are discrepancies between its order of October 16, 1998 and the final judgment. This case is similar to Morgan v. Morgan, 854 P.2d 559 (Utah Ct. App. 1993), where husband claimed error because a minute entry of the court awarded him one hundred percent of the couple's stock, but the final judgment awarded him only seventy-five percent. See id. at 561. We recognized that the court's final judgment takes precedence over an interlocutory order. See id. at 562 n.3. In addition, the trial court's denial of Defendant's motion to amend the judgment, in our case, indicates that the changes were purposeful on the part of the court, and not the result of clerical error.

Finally, Defendant argues that the trial court abused its discretion in denying her motion for a new trial. Rule 59 of the Utah Rules of Civil Procedure provides, in part, that "a new trial may be granted to all or any of the parties and on all or part of the issues." Utah R. Civ. P. 59(a) (emphasis added). "[B]oth the granting of, and the refusing to grant, a new trial is a matter left to the discretion of the trial judge, and that decision will be reversed only if the judge has abused that discretion by acting unreasonably." Christenson v. Jewkes, 761 P.2d 1375, 1377 (Utah 1988). Defendant has not met her burden of showing that the newly discovered evidence of damage to the home could not have been discovered and produced at trial through due diligence, and that the outcome of the trial would have been affected by the newly discovered evidence. See Cellcom v. Systems Communication Corp., 939 P.2d 185, 191 (Utah Ct. App. 1997). Defendant's other specified grounds for a new trial are without merit. Therefore, the trial court was not unreasonable in denying Defendant's motion.

Accordingly, we affirm the judgment of the trial court.
 
 

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

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge