Chipman v. Miller

• Decision Date: 13 March 1997
• Docket Number: No. 960194-CA,960194-CA
• Parties: 312 Utah Adv. Rep. 37 Curtis CHIPMAN and Fay Chipman, Plaintiffs, Appellants, and Cross-appellees, v. Janice MILLER, Dana Anderson, and Kim Anderson, Defendants, Appellee, and Cross-appellant.
• Court: Utah Court of Appeals

Page 1158

934 P.2d 1158

312 Utah Adv. Rep. 37

Curtis CHIPMAN and Fay Chipman, Plaintiffs, Appellants, and Cross-appellees, v. Janice MILLER, Dana Anderson, and Kim Anderson, Defendants,

Appellee, and Cross-appellant.

No. 960194-CA.

Court of Appeals of Utah.

March 13, 1997.

Gordon Duval and Jeff Buhman, Pleasant Grove, for Appellants.

Craig M. Snyder and Leslie W. Slaugh, Provo, for Appellee.

Before WILKINS, BENCH and GREENWOOD, JJ.

OPINION

WILKINS, Associate Presiding Judge:

Plaintiffs Curtis and Fay Chipman appeal the trial court's order awarding attorney fees to defendant Janice Miller and denying their claim for attorney fees. Miller cross-appeals for double costs and attorney fees. We reverse the trial court's order granting Miller's claim for attorney fees, affirm the order denying Chipmans' claim for fees, and decline to award Miller costs and fees on appeal.

BACKGROUND

This appeal arises from a suit brought by Curtis and Fay Chipman against Janice Miller and Dana and Kim Anderson to quiet title to property subject to a disputed boundary line. After disclaiming any interest in the disputed property, the Andersons were dismissed from the action and are not parties to this appeal.

The Chipmans and Miller have been neighbors and adjoining landowners for years. Miller's tract of land lies immediately south of the Chipmans' property. A fence and a hedge, which have existed for more than twenty years, divide the two tracts of land. For decades, the fence and hedge have been recognized by the Chipmans, Miller, and all their predecessors in title as the boundary line separating the two properties. The legal description in Miller's deed describes the fence line as the northernmost boundary of her property. Furthermore, Miller herself has executed deeds and filed subdivision plat maps specifically acknowledging the fence and hedge as the official boundary. Historical deeds, however, describe the boundary line as existing approximately five feet north of the fence and hedge, on the Chipmans' property.

In 1994, the Chipmans began subdividing parts of their property. At the June 15, 1994 American Fork City Planning Commission meeting, they sought final plat approval on a subdivision that included the property up to the fence and hedge. Miller attended the meeting, claiming an ownership interest in the property extending five feet north of the fence line. Because of the boundary dispute, the Commission denied the Chipmans' application for a building permit.

From June 1994 through March 1995, the Chipmans repeatedly attempted to resolve the boundary dispute with Miller. They retained an attorney and sent letters requesting that Miller sign a quitclaim deed in light of the Utah Supreme Court's opinion in Staker v. Ainsworth, 785 P.2d 417 (Utah 1990), and this court's then recent opinion in Carter v. Hanrath, 885 P.2d 801 (Utah.Ct.App.1994), rev'd on other grounds, 925 P.2d 960 (Utah 1996). Both of these cases recognized the doctrine of boundary by acquiescence, which, in certain circumstances, gives ownership of property subject to a disputed boundary line to the party in physical possession of the land, despite legal ownership by another. See Staker, 785 P.2d at 420; Carter, 885 P.2d at 804. Miller repeatedly refused to sign any such quitclaim deed.

On March 8, 1995, the Chipmans filed a complaint involving two causes of action--an action to quiet title, and an action to recover attorney fees under Utah Code Ann. § 78-27-56(1) (1996), on the theory that any defense to the action by Miller would "be without merit and not brought in good faith." On April 18, 1995, Miller signed and delivered a quitclaim deed to the Chipmans. The Chipmans, however, insisted on pursuing their second cause of action, the claim for attorney fees, arguing that Miller acted in bad faith by forcing them to file a complaint before she quitclaimed the disputed property. Miller filed an answer responding to both claims by disclaiming all interest in the disputed property and denying the claim for attorney fees. Miller also filed a counterclaim for attorney fees under section 78-27-56(1) and Rule 11 of the Utah Rules of Civil Procedure, asserting that both the Chipmans and their attorney were acting in bad faith in continuing to pursue the second cause of action for attorney fees after obtaining the quitclaim deed.

On cross-motions for summary judgment on the respective claims for attorney fees, the trial court concluded that based on the language of Utah Code Ann. § 78-40-3 (1996), which precludes a plaintiff from recovering "costs" in an undisputed quiet title action, the Chipmans' request for attorney fees was both without merit and asserted in bad faith. As a result, the trial court denied the Chipmans' claim, granted Miller's counterclaim, and awarded Miller $484 in attorney fees incurred in responding to the Chipmans' claim for fees.

ANALYSIS

On appeal, the Chipmans challenge the trial court's order denying their claim for fees and awarding attorney fees to Miller. Miller cross-appeals, asking this court to affirm the trial court's order and award her double costs and attorney fees on appeal.

I. The Chipmans' Claim For Attorney Fees

The Chipmans assert that the trial court erred in denying their second cause of action to recover attorney fees. In their complaint, the Chipmans requested attorney fees on two grounds. First, the Chipmans requested attorney fees under the bad faith statute, section 78-27-56(1), if Miller asserted any defense to the quiet title action. Any such defense, they claimed, would be "without merit and not brought or asserted in good faith." However, the facts establish that Miller did not defend against the quiet title action. Instead, she signed a quitclaim deed and, in her answer, disclaimed any interest in the property. Because Miller asserted no defense, with or without merit, we conclude the Chipmans were not entitled to fees under the bad faith statute.

Second, the Chipmans assert that they are entitled to recover fees as the prevailing party in the quiet title action. However, they cite no contract or statute entitling them to attorney fees as the prevailing party in a quiet title action. See Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988) (stating "attorney fees are awardable only if authorized by statute or by contract"). Simply put, based on the allegations of their complaint, the Chipmans are not entitled to attorney fees.

However, on appeal, the Chipmans also assert a third basis for fees. They ask this court for attorney fees under section 78-27-56(1) based upon Miller's prelitigation conduct, which the Chipmans argue constituted bad faith. The Chipmans argue that Miller acted in bad faith by repeatedly refusing to sign the quitclaim deed until after they had filed suit. In support, the Chipmans cite cases from other jurisdictions recognizing that bad faith conduct, sufficient to serve as a basis for attorney fees, can be found in actions leading to the lawsuit as well as in the conduct of the litigation itself. See, e.g., Andrews v. District of Columbia, 443 A.2d 566, 569 (D.C.1982); Harkeem v. Adams, 117 N.H. 687, 377 A.2d 617, 619 (1977). These courts have awarded attorney fees for bad faith prelitigation conduct that forces an individual to seek judicial assistance to secure a clearly defined and established right. See Harkeem, 377 A.2d at 619 (holding plaintiff's right to unemployment compensation is clearly defined right by statute); see also Trayner v. Cushing, 688 P.2d 856, 858 (Utah 1984) (recognizing that party seeking judicial assistance to enforce rights under agreement is entitled to attorney fees).

Although the Chipmans urge us to follow this line of reasoning, they fail to cite any authority establishing their "clearly defined right" to the disputed property. We acknowledge that Utah courts recognize the doctrine of boundary by acquiescence. See Staker, 785 P.2d at 420-424; Carter, 885 P.2d at 804 (explaining that party claiming boundary by acquiescence must meet four requirements). However, although these cases may be persuasive, they neither establish nor guarantee that the Chipmans had a clearly defined right to the property in this instance. Merely meeting the judicially created requirements of boundary by acquiescence does not create legal ownership. Absent a voluntary agreement between the disputing parties, a quiet title action is the only legally binding way to settle a boundary dispute. Therefore, we cannot say that Miller acted in bad faith by refusing to sign the quitclaim deed until after the Chipmans had filed suit.

We therefore affirm the trial court's order denying the Chipmans' claim for attorney fees.

II. Miller's Award of Attorney Fees

The trial court granted Miller's counterclaim for attorney fees under Utah Code Ann. § 78-27-56(1) (1996), which provides, "In civil actions, the court shall award reasonable attorney's fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith." Id. § 78-27-56(1). Under the plain language of this statute, attorney fees are appropriately awarded only if the trial court determines that three requirements are met: (1) the party seeking fees prevailed; (2) the claim or defense asserted by the opposing party was meritless; and (3) that claim or defense was asserted in bad faith. With regard to each of these elements, the trial court must make specific findings. See Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1068 (Utah 1991) ("Specific findings further the ends of justice by allowing appeals courts to better review the trial court's award."). Absent specific findings, the basis of the award cannot be determined. Id.

The Chipmans assert the trial court erred in granting Miller's claim for fees under section 78-27-56(1) because Miller is not the prevailing party, and because their claim for fees was neither...