Neff v. Neff

• Decision Date: 14 January 2011
• Docket Number: No. 20080850.,20080850.
• Citation: 247 P.3d 380,2011 UT 6,673 Utah Adv. Rep. 38
• Parties: Branson G. NEFF, Plaintiff, Appellant and Cross–Appellee,v.Marvin G. NEFF; Travis L. Bowen, Esq.; Travis L. Bowen, P.C.; ABCo Construction, Inc.; and WESTCo, Defendants, Appellees and Cross–Appellants.
• Court: Utah Supreme Court

247 P.3d 380

673 Utah Adv. Rep. 38

2011 UT 6

Branson G. NEFF, Plaintiff, Appellant and Cross–Appellee,

v.Marvin G. NEFF; Travis L. Bowen, Esq.; Travis L. Bowen, P.C.; ABCo Construction, Inc.; and WESTCo, Defendants, Appellees and Cross–Appellants.

No. 20080850.

Supreme Court of Utah.

Jan. 14, 2011.

James E. Magleby, Christopher M. Von Maack, Salt Lake City, for appellant/cross-appellee.

Marlin J. Grant, James C. Jenkins, Logan, for appellees/cross-appellants.DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 The parties in this case, Branson and Marvin Neff,¹ are brothers and one-time business partners. This case initially arose from the brothers' alleged wrongdoing toward one another in the context of their joint business venture and their attempt to dissolve their business relationship. Litigation before the district court lasted for more than six years, during which time the case grew to encompass a dispute over Branson's alleged mismanagement of a family trust established by the brothers' parents. After a physical altercation between the brothers and Branson's arrest on related charges, the case also came to include claims for assault and battery and malicious prosecution. Other claims were raised and resolved over the years, but as the case is presented to us, these are the key disputes underlying the questions on appeal.

¶ 2 We are asked to resolve three questions. First, the trial court entered summary judgment against Branson on his claim for malicious prosecution on the bases that Branson had not established that the prosecution was initiated in the absence of probable cause and that Branson failed to establish that Marvin acted with malice. The trial court found that the existence of probable cause was an undisputed fact because the magistrate judge in Branson's criminal proceedings found the existence of probable cause when it bound Branson over for trial.

¶ 3 On appeal, Branson argues that the magistrate's finding of probable cause at the time of trial does not conclusively establish that Marvin had probable cause to initiate proceedings against Branson. He also argues that summary judgment was inappropriate because he had established sufficient facts to give rise to an inference that Marvin acted with malice. We need not address the merits of Branson's arguments because we affirm the trial court on an alternative basis. Specifically, we hold that summary judgment was appropriate because Branson entered into a plea in abeyance agreement with regard to the criminal charges. Since termination of criminal proceedings in favor of the accused is an element of a claim for malicious prosecution, this plea in abeyance independently defeats Branson's claim.

¶ 4 Second, Marvin argues that the trial court erred in determining which of the brothers was the prevailing party for purposes of awarding attorney fees. Marvin sought attorney fees based on the fact that he obtained jury verdicts and awards of nominal damages in his favor with regard to claims against Branson for assault and battery and breach of contract. He also successfully defeated many of the claims raised by Branson. And at a separate trial related to Branson's administration of a family trust, Marvin also obtained a money judgment in the amount of approximately $27,000 plus interest. Marvin's successes were partially offset by awards to Branson. Given the multitude of claims raised and the relatively minimal success achieved by either brother, the trial court found that neither party should be considered to have prevailed for purposes of awarding attorney fees.

¶ 5 On appeal, Marvin challenges this determination for a number of reasons. Chiefly, he argues that the trial court failed to account for the fact that Marvin successfully defended against a number of claims, which, while not reflected in the dollar value of his recovery, were nevertheless important indicators of his relative success. He also argues that, for certain procedural reasons, he was not given a proper opportunity to move the court for attorney fees on the claims related to the family trust. We hold that the trial court correctly considered the whole scope of litigation when it made its determination and that, because it had a reasonable basis for refusing to award attorney fees, it did not abuse its discretion when it awarded fees to neither party.

¶ 6 Third, we are asked to examine whether the trial court correctly granted JNOV with regard to jury verdicts in Branson's favor on claims of slander of title and breach of fiduciary duty. The jury verdicts with regard to these claims were somewhat ambiguous because, while the jury indicated that it found that Marvin had slandered Branson's title and breached a fiduciary duty to Branson, the jury also found that Branson suffered $0 in damages related to these harms. When asked with regard to these same claims whether Marvin should be required to pay Branson's attorney fees, the jury responded affirmatively. The trial court granted JNOV with regard to both claims on the basis that the jury was only prompted to address attorney fees if they entered a finding of damages and that, since they found $0 in damages, the jury incorrectly reached the attorney fees question.

¶ 7 On appeal, Branson argues that the trial court misinterpreted the jury's verdict and that the jury intended to award attorney fees as special damages. We conclude that the trial court erred when it entered JNOV on Branson's claim for slander of title because attorney fees reasonably incurred to remove clouds from title can form the basis of a damages award in a slander of title case. But because attorney fees standing alone cannot form the basis of damages in a claim for breach of fiduciary duty, the trial court did not err when it granted JNOV with respect to the jury's finding of breach of fiduciary duty.

¶ 8 Accordingly, we reverse the trial court's entry of JNOV on Branson's claim for slander of title. We affirm the trial court's judgment in all other respects.² The case is remanded for a determination of the amount of attorney fees reasonably incurred in removing from Branson's title the clouds that gave rise to his slander of title claim.

BACKGROUND

I. THE DISPUTE REGARDING DISSOLUTION OF THE BROTHERS' BUSINESS

¶ 9 For more than two decades, Branson and Marvin Neff were co-owners of a construction business. This business relationship ended in 1999, when the brothers hired an attorney to help them negotiate and draft an agreement to divide their interests in the business.³ At that time, the brothers' joint venture consisted of a number of business entities and pieces of property. For purposes of this appeal, it is sufficient to say that the brothers were co-owners of a parcel of land situated in Box Elder County and two construction companies, ABCo Construction, Inc., and WESTCo, Inc.

¶ 10 A dispute arose because Branson believed he never received a number of benefits to which he was entitled under the dissolution agreement. He brought suit seeking an accounting of the value of ABCo and WESTCo and alleging, essentially, that negotiations of the dissolution agreement were tainted by a number of fraudulent representations made by Marvin. Branson also sought rescission of the dissolution agreement, alleging that, even in the absence of fraud, the contracts that made up the dissolution agreement were unenforceable. Alternatively, were the dissolution agreement to be deemed enforceable, Branson sought recovery for breach of contract based on Marvin's alleged failure to meet his obligations under the dissolution agreement. Specifically, he alleged that the agreement required Marvin to transfer to him certain sums of money and to pay certain of his health- and life-insurance premiums. Among other things, Marvin had also allegedly agreed to make mortgage payments on certain property, to pay Branson the value of a second life insurance policy, and to let Branson use company-owned equipment for personal use.

¶ 11 One component of the dissolution agreement is of special importance. According to Branson, before the end of their business dealings, the brothers had been co-owners of a piece of property in Box Elder County. In 1978, two parcels of this land, which the brothers refer to as the “farm property,” were excised, with one parcel being transferred to each brother. On these separately owned pieces of land, each of the brothers built a home. The brothers remained co-owners of the undivided parcel. Under the dissolution agreement, Branson alleges that the undivided parcel of farm property was supposed to be transferred back to him.⁴ Branson alleged that as part of the transfer he was required to sign quitclaim deeds to his home so that title to all of the relevant land could be united in a single owner before the ultimate redistribution under the terms of the brothers' agreement. According to Branson, these deeds were not meant to be recorded until all of the documents necessary for the negotiated-for transfer of all relevant property could be accomplished. In spite of this, Branson alleged, Marvin caused these quitclaim deeds to be recorded, which Branson alleged constituted slander of his title to his home. When Branson later amended his complaint, he also raised a quiet title claim related to this land.

¶ 12 In addition to these claims, Branson also argued that he had been damaged by Marvin's actions while the brothers were in business together. He claimed that Marvin had breached a fiduciary duty owed to him by misappropriating company funds and business opportunities for Marvin's personal benefit. Based on this alleged wrongdoing, he also brought claims against Marvin for conversion and money had and received. Finally, Branson sought declaratory judgment regarding the enforceability of a salary-continuation agreement entered into while he and Marvin were still conducting business together. According to Branson, this agreement provided that he...