Salt Lake Cnty. v. Butler, Crockett & Walsh Dev. Corp.

Citation727 Utah Adv. Rep. 7,297 P.3d 38
Decision Date31 January 2013
Docket NumberNo. 20110856–CA.,20110856–CA.
CourtCourt of Appeals of Utah
PartiesSALT LAKE COUNTY, Plaintiff and Appellee, v. BUTLER, CROCKETT & WALSH DEVELOPMENT CORPORATION, Defendant and Appellant.

OPINION TEXT STARTS HERE

John Walsh, for Appellant.

Donald H. Hansen and David H.T. Wayment, for Appellee.

Opinion

VOROS, Judge:

¶ 1 This appeal presents a dispute over attorney fees. The appeal arises from appellee Salt Lake County's unsuccessful attempt to condemn a portion of Emigration Canyon real estate owned by appellant Butler, Crockett & Walsh Development Corporation (BCW). Having prevailed at trial, BCW sought an award of attorney fees and costs under the Eminent Domain Act and bad faith fee statute. The trial court rejected BCW's claims under the two statutory provisions. The court also ruled that, in any event, BCW could not recover attorney fees in view of the fact that its attorney and his wife owned virtually all of the stock of BCW.1 We affirm.

BACKGROUND

¶ 2 In 2007, the Salt Lake County Council passed a condemnation resolution as part of the Pinecrest Turnaround Improvement Project, directing the Salt Lake County District Attorney to acquire 787 square feet of land belonging to BCW. Accordingly, the County filed a Complaint for Condemnation.

¶ 3 The County also filed a motion to disqualify John Walsh as BCW's attorney on the ground that he would be a key witness if the matter went to trial. During the pendency of this motion, attorney Kevin Anderson entered an appearance as counsel for BCW. However, thirteen days later, the County and BCW stipulated that Mr. Walsh could represent BCW until trial.

¶ 4 The County also filed a Motion for Immediate Occupancy. The court held a four-day evidentiary hearing on the motion. At the conclusion of the hearing, the court found that the County “designed the proposed turnaround without adequately considering the impact on the adjoining land, the water systems currently in place, the burden of additional snow storage on [BCW's] property, and the parking situation and its resulting impact on future development.” The court also found that the testimony of one of the County's witnesses suggested the existence of “other designs ... which would have been potentially less injurious.” Finally, the court concluded that the County had acted with “a level of disregard which rises to arbitrariness” and had not “acted reasonably or in good faith.” Accordingly, the court denied “the Order of Immediate Occupancy, as that occupancy is currently framed.” However, the court noted that “the County could potentially meet [the] requirements” of the Eminent Domain Act. See generallyUtah Code Ann. § 78B–6–504 (LexisNexis 2012). 2

¶ 5 On July 31, 2008, the County sent a letter to the court seeking guidance as to whether the trial should be canceled in light of the court's ruling. Specifically, the County expressed concern that no triable issues remained, rendering trial moot. The court did not reply directly but, on August 1, 2008, canceled the trial date of August 25, 2008.

¶ 6 BCW prepared proposed findings of fact and conclusions of law at the request of the court. The court twice rejected BCW's proposed findings and conclusions, and required BCW to remove the attorney fee award it had included in the proposed order.

¶ 7 On December 10, 2008, the County filed a motion for voluntary dismissal with prejudice (later amended to seek dismissal without prejudice). Within a week, BCW filed a motion seeking undetermined attorney fees and costs under the abandonment statute of the Eminent Domain Act. See id. § 78B–6–517.3 Two weeks later, the County moved to either (1) withdraw the motion for dismissal without prejudice, or (2) enter the County's proposed order dismissing without prejudice. The County argued that it had not voluntarily chosen to abandon the condemnation but had instead lost at trial. It cited its July 31, 2008 letter inquiring whether the trial was canceled. The County also stated that BCW had ignored the County's offer to stipulate to dismissal with prejudice in light of the court's ruling.

¶ 8 The court issued a minute entry (1) denying the County's attempt to withdraw its motion to dismiss and (2) granting BCW undetermined attorney fees pursuant to Utah Code section 78B–6–517 on the ground that the County had voluntarily dismissed the underlying action. The court noted that the July 15, 2008 minute entry order had ruled only on the motion for immediate occupancy and that the County could have reframed the condemnation and proceeded.

¶ 9 The County moved to amend the order on the ground that the court had erred in granting the County's motion to dismiss. The County argued that, under the language of the abandonment statute, a court may not grant a condemnor's voluntary dismissal motion until the condemnor has compensated the condemnee for attorney fees and other damages sustained as a result of the condemnation action. See id. § 78B–6–517. According to this seemingly circular reading of the abandonment statute, the trial court could not grant the condemnee attorney fees under the statute until the condemner had already paid the condemnee's fees. On April 29, 2009, the court agreed, granted the County's motion to amend the order, and vacated the dismissal and award of attorney fees.

¶ 10 The court also clarified that its earlier ruling had been limited “to the proposed turnaround as it was then presented” and thus did not bar the County's condemnation action altogether. Accordingly, the County moved to amend its complaint, reducing the target parcel from 787 square feet to 111 square feet. After a two-day bench trial, the court issued a memorandum decision denying the condemnation. The court found that the reduced condemnation proposal had met the requirements of Utah Code section 78B–6–504(1), in that the proposed use was “authorized by law” and “the taking [was] necessary for the use,” but was not “compatible with the greatest public good and the least private injury,” as required by Utah Code section 78B–6–506. Because the decision did not address the issue of attorney fees, BCW raised this issue in subsequent filings, as explained below.

ISSUES AND STANDARDS OF REVIEW

¶ 11 BCW advances three main contentions on appeal. First, BCW contends that the trial court erred in not awarding it attorney fees and costs under the bad faith fee statute, Utah Code Ann. § 78B–5–825 (LexisNexis 2012). We review a finding of bad faith under the clearly erroneous standard. Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 8, 122 P.3d 556.

¶ 12 Second, BCW contends that the trial court erred in not awarding it attorney fees and costs under the United States Constitution and the Utah Constitution. BCW did not preserve this claim in the trial court. “When a party raises an issue on appeal without having properly preserved the issue below, we require that the party articulate an appropriate justification for appellate review; specifically, the party must argue either plain error or exceptional circumstance[s].” State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (citation and internal quotation marks omitted).

¶ 13 Finally, BCW requests an award of attorney fees on appeal. [W]hen a party who received attorney fees below prevails on appeal, ‘the party is also entitled to fees reasonably incurred on appeal.’ Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (quoting Utah Dep't of Social Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct.App.1991)).

ANALYSIS
I. Jurisdiction

¶ 14 As a threshold matter, the County contends that this court lacks jurisdiction to adjudicate the appeal because BCW's notice of appeal was not timely filed. We conclude that we have jurisdiction.

¶ 15 [F]ailure to timely perfect an appeal is a jurisdictional failure requiring dismissal of the appeal.” Prowswood, Inc. v. Mountain Fuel Supply Co., 676 P.2d 952, 955 (Utah 1984). A notice of appeal must be “filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Utah R.App. P. 4(a). BCW's notice of appeal was filed on September 14, 2011. The question, then, is whether the time for filing had already expired.

¶ 16 The County asserts that the March 15, 2011 memorandum decision was a final, appealable order. We assume for purposes of this analysis that it was. After entry of that order, BCW filed a motion to alter or amend pursuant to rule 59 of the Utah Rules of Civil Procedure. A rule 59 motion must be served “not later than 10 days after the entry of the judgment.” Utah R. Civ. P. 59(b). The County concedes that BCW's rule 59 motion was timely.

¶ 17 A timely rule 59 motion stops the appeals clock; thereafter, “the time for all parties to appeal from the judgment runs from the entry of the order disposing of the motion.” Utah R.App. P. 4(b)(1)(C). The County asserts that the order disposing of BCW's rule 59 motion was the trial court's “Ruling” dated May 25, 2011. Accordingly, the County argues that the time to appeal ran from May 25, 2011, and BCW's notice of appeal filed September 14, 2011, was well past the thirty-day limit.

¶ 18 However, the court's May 25, 2011 ruling did not comply with rule 7(f) of the Utah Rules of Civil Procedure. Under rule 7(f), “unless the court specifically directs otherwise, the prevailing party must submit an order to the court before the time for appeal will begin running.” Houghton v. Dep't of Health, 2008 UT 86, ¶ 11, 206 P.3d 287. Neither party here submitted a proposed order in response to the court's May 25, 2011 ruling, and the ruling itself did not direct otherwise. The ruling thus did not comply with rule 7(f). An order not in compliance with rule 7(f) is not final for the purposes of appeal. Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 32–33, 201 P.3d 966;Code v. Utah Dep't of Health, 2007 UT 43, ¶ 9, 162 P.3d 1097. Consequently, contrary to the County's assertion, the May 25, 2011 ruling did not restart the...

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