Bailey-Allen Co., Inc. v. Kurzet

• Decision Date: 18 September 1997
• Docket Number: BAILEY-ALLEN,No. 960839-CA,960839-CA
• Citation: 945 P.2d 180
• Parties: 326 Utah Adv. Rep. 3 CO., INC., Plaintiff and Appellee, v. Stanley M. KURZET, an individual; Stanley M. Kurzet and Anne L. Kurzet, as trustees for the Kurzet Family Trust; and the Kurzet Family Trust, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 180

945 P.2d 180

326 Utah Adv. Rep. 3

BAILEY-ALLEN CO., INC., Plaintiff and Appellee, v.Stanley M. KURZET, an individual; Stanley M. Kurzet and Anne L. Kurzet, as trustees for the Kurzet Family Trust; and the Kurzet Family TrustDefendants and Appellants.

No. 960839-CA.

Court of Appeals of Utah.

Sept. 18, 1997.

Spencer E. Austin and William J. Evans, Parsons, Behle & Latimer, Salt Lake City, for Defendants and Appellants.

Bruce J. Nelson and Russell G. Workman, Allen, Nelson, Rasmussen & Christensen, Salt Lake City, for Plaintiff and Appellee.

Before DAVIS, P.J., and WILKINS and BENCH, JJ.

OPINION

DAVIS, Presiding Judge:

This case is before us for the second time on appeal.SeeBailey-Allen Co., Inc. v. Kurzet, 876 P.2d 421(Utah Ct.App.1994)(Bailey-Allen I ).This time around, the Kurzets challenge the trial court's Amended Findings of Fact (Amended Findings) and Conclusions of Law (Amended Conclusions) entered pursuant to remand.In addition, the Kurzets raise a postjudgment interest question regarding the trial court's original judgment and challenge the trial court's failure to impose sanctions on Bailey-Allen.

BACKGROUND

The factual history of this case is outlined in Bailey-Allen I.Accordingly, "we add only those facts and events necessary to review the trial court's actions on remand pursuant to our directions in [Bailey-Allen I ]."Willey v. Willey, 914 P.2d 1149, 1150(Utah Ct.App.), cert. granted, 925 P.2d 963(Utah1996).

In Bailey-Allen I, this court reversed the trial court's quantum meruit/unjust enrichment award in favor of Bailey-Allen and remanded "for analysis and findings under the standard articulated in [Davies v. Olson, 746 P.2d 264(Utah Ct.App.1987) ]."876 P.2d at 426.We also reversed the trial court's prejudgment interest award; reversed and remanded the trial court's postjudgment interest award and "direct[ed]the trial court to award postjudgment interest, if a judgment [wa]s awarded, only from the date the new judgment on remand [wa]s entered;" and reversed and remanded "for the entry of attorney fees [to the Kurzets] under the Mechanics' Lien Statute and for consideration of whether [fees] should be awarded under the Bond Statute."Id. at 429.

On remand, the trial court awarded the Kurzets $1920 in attorney fees and $17.50 in costs, having determined that such amounts were reasonably incurred "in bringing their motion for partial summary judgment on [Bailey-Allen's] causes of action based on the Mechanic[s'] Lien Statute and the Construction Bond Statute."The trial court also awarded "postjudgment interest on said award of attorney fees and costs ... from and after the date of entry of this judgment[, January 23, 1995]."Thereafter, the Kurzets filed a Motion for Entry of Judgment Nunc Pro Tunc"on their judgment against [Bailey-Allen] in the amount of $4,359.00 in damages together with interest thereon" based on the trial court's judgment entered October 6, 1992, partially offsetting the judgment in favor of Bailey-Allen.Bailey-Allen filed a motion opposing the Kurzets' nunc pro tunc motion.

Bailey-Allen also filed a motion seeking to set asidethe trial court's prior, unappealed order dismissing Bailey-Allen's mechanics' lien cause of action and to set aside the January 1995 judgment for attorney fees in favor of the Kurzets.In addition, Bailey-Allen filed a Motion for Entry of Additional and Amended Findings of Fact, Conclusions of Law, and Judgment pursuant to this court's 1994 decision.SeeBailey-Allen I, 876 P.2d at 426.In response to Bailey-Allen's Motion to Set Aside, the Kurzets filed a motion for sanctions under Rule 11 of the Utah Rules of Civil Procedure alleging Bailey-Allen's Motion to Set Aside was "frivolous and unwarranted" and seeking "attorneys [sic] fees and costs incurred in opposing said motion and in bringing this Motion for Sanctions Under Rule 11."Bailey-Allen later withdrew its Motion to Set Aside.

Pursuant to a Minute Entry, the trial court granted Bailey-Allen's motion for additional findings, declared moot the Kurzets' nunc pro tunc motion, denied the Kurzets' motion for Rule 11 sanctions, ordered the previous award of attorney fees be included in the amended judgment, and ordered Bailey-Allen to prepare the amended findings, conclusions, and judgment.Thereafter, the trial court signed the Amended Findings of Fact and Conclusions of Law, Amended Judgment, and Order Denying Motions for Sanctions and for Entry of Judgment Nunc Pro Tunc.The Kurzets filed a notice of appeal, whereupon the parties filed a Joint Motion for an Order Authorizing Payment of Amended Judgment Into Court and Staying Execution of Amended Judgment.The trial court granted the parties' joint motion.

The Kurzets raise five issues on appeal: ¹(1) whether the trial court's Amended Findings are contrary to this court's prior mandate to enter consistent, detailed findings, and whether the trial court's Amended Findings are supported by the record evidence; (2) whether the trial court's Amended Findings and its Amended Conclusions satisfy the elements necessary for recovery in quasi-contract; (3) whether the trial court erred in determining that the Kurzets were unjustly enriched by Bailey-Allen's renegotiation of lumber prices; (4) whether the trial court erred in denying the Kurzets' Motion for Entry of Judgment Nunc Pro Tunc; and (5) whether the trial court erred by not awarding the Kurzets sanctions for Bailey-Allen's alleged violation of Rule 11 of the Utah Rules of Civil Procedure.

In addition, citing Willey, 914 P.2d 1149, the Kurzets invite this court to correct any errors made on remand rather than again sending this case before the trial court.In Willey, this court noted that an appellate court may take " 'corrective action in the interest of justice' " where the trial court's "resolution of the issues raised in [the appellate court's] remand order" is incomplete.Id. at 1151(citation omitted).

ANALYSIS

Initially, we note that " 'pronouncements of an appellate court on legal issues ... become the law of the case and must be followed in subsequent proceedings[;] ... [thus,] the lower court must implement both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.' "Slattery v. Covey & Co., Inc., 909 P.2d 925, 928(Utah Ct.App.1995)(quotingThurston v. Box Elder County, 892 P.2d 1034, 1037-38(Utah1995)(citations omitted))."Thus, it is only when issues are left open by an appellate decision that the trial court has discretion to deal with those issues as it sees fit, including allowing supplemental filings or proceedings."Id.

1.Amended Findings

The Kurzets first contend that the trial court's Amended Findings are contrary to this Court's remand in Bailey-Allen I because the trial court did not "supersede its Original Findings and Conclusions which were already inconsistent" and "attempt[ed] to find evidence supporting ... an award to Bailey-Allen where none exists."The Kurzets assert:

When Bailey-Allen submitted its proposed Amended Findings and Conclusions it proposed that they"supersede the original Findings and Conclusions."... The trial court, however, was uncomfortable abandoning the Original Findings, and ultimately ruled that the Original Findings must stand.The operative findings of fact on this appeal, therefore, are the Original Findings and the Amended Findings.The Original Findings were ... internally inconsistent.The Amended Findings are even more inadequate because they not only preserve the inconsistencies, but they directly contradict the evidence.

At the hearing on the Kurzets' objections to Bailey-Allen's proposed findings, the trial court noted that the Kurzets took "issue with the statement made by [Bailey-Allen that the Amended Findings]'supersede the original findings.' "In response, Bailey-Allen's counsel noted that the Amended Findings "were drafted with the view that they were superseding.I haven't gone back now and compared to see whether some of the new findings you made would conflict with the old ones you made.I suspect that's what [the Kurzets']counsel's problem may be."The Kurzets' counsel then argued the exact opposite position the Kurzets now take on appeal, stating, "the Court of Appeals ... said that they remanded [the case] to 'clarify.'So perhaps I could suggest that word, 'clarify,' or 'clarified' the findings of fact and conclusions of law."Based on the arguments of counsel, the trial court changed the "supersede" language within the proposed Amended Findings to "clarified."

The Kurzets are not at liberty to argue one position below and then take the opposite position on appeal.SeeFirst Equity Corp. v. Utah State Univ., 544 P.2d 887, 892 n. 5(Utah1975).In addition, the Kurzets mistakenly conclude that "the Original Findings and the Amended Findings" must both be considered on appeal.The trial court's Amended Findings incorporate, practically verbatim, the Original Findings and add fifteen new findings.Clearly the Amended Findings were intended to replace the Original Findings.Cf.Waters v. Yockey, 144 Tex. 592, 192 S.W.2d 769(1946).²Notwithstanding, to the extent that the Amended Findings and the Original Findings are inconsistent, we have extensively reviewed the record and have determined that the Amended Findings more accurately reflect the record evidence.Thus, our focus is whether the trial court's Amended Findings are detailed and consistent as mandated by Bailey-Allen I.

Without question, the trial court's factual findings are more detailed as amended and clearly satisfy the call for particularity of Bailey-Allen I.However, the Kurzets contend that the findings remain inconsistent and are unsupported by the record.Specifically, the Kurzets challenge findings numbered fourteen through seventeen, nineteen, and twenty.

"To overturn a trial court's finding of fact, 'an appellant must...