Saunders v. Sharp, 900332-CA

• Decision Date: 12 September 1991
• Docket Number: No. 900332-CA,900332-CA
• Citation: 818 P.2d 574
• Parties: Leon H. SAUNDERS; Robert Felton; Saunders Land Investment Corporation, a Utah corporation; White Pine Ranches, a Utah general partnership; White Pine Enterprises, a Utah general partnership; and J. Richard Rees, Plaintiffs and Appellants, v. John C. SHARP and Geraldine Y. Sharp; and Associated Title Company, a Utah corporation, as Trustees, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 574

818 P.2d 574

Leon H. SAUNDERS; Robert Felton; Saunders Land Investment Corporation, a Utah corporation; White Pine Ranches, a Utah general partnership; White Pine Enterprises, a Utah general partnership; and J. Richard Rees, Plaintiffs and Appellants, v. John C. SHARP and Geraldine Y. Sharp; and Associated Title Company, a Utah corporation, as Trustees Defendants and Appellees.

No. 900332-CA.

Court of Appeals of Utah.

Sept. 12, 1991.

Robert M. Anderson, Glen D. Watkins (argued), Bruce Wycoff, Anderson & Watkins, Salt Lake City, for appellants Saunders, Felton, White Pine Ranches, and White Pine Enterprises.

Mark H. Anderson (argued), Marilynn P. Fineshriber, Patricia L. LaTulippe, Neilsen & Senior, Salt Lake City, for appellees John and Geraldine Sharp.

Before BILLINGS, Associate P.J., and ORME and RUSSON, JJ.

OPINION

BILLINGS, Associate Presiding Judge:

Following a bench trial in September 1988, the third district court entered a money judgment against appellants (White Pine) in favor of the appellees (Sharp). White Pine appealed from that judgment. During the pendency of the appeal from the September 1988 judgment, the trial judge entered post-judgment orders which are the subject of this second appeal. We affirm those post-judgment orders in part and reverse and remand in part.

The facts forming the basis of the underlying foreclosure action are not at issue in this appeal. ¹ The Sharps sold real property located in White Pine Canyon near Park City, Utah to White Pine. Each party claimed the other had failed to fulfill its contractual obligations. In September 1988, the district court determined White Pine had breached the contract and entered a money judgment against White Pine for $759,415.63 including principal, interest, costs, attorney fees, and delinquent property taxes, and ordered the property sold and the proceeds applied against the judgment. White Pine perfected a timely appeal of the judgment and this court subsequently affirmed. White Pine then petitioned the Utah supreme court for certiorari. The supreme court granted certiorari and ultimately reversed and remanded the case to this court for further review. ²

After the September 1988 judgment was entered, White Pine asked the district court for a stay of the judgment pending appeal and moved for approval of a supersedeas bond. The district court set the bond amount at $79,193.36 and on January 20, 1989 White Pine posted the bond. The Sharps objected to the bond amount and the district court ultimately entered its final "Order Re: Supersedeas Bond" in March 1989. This order entered a stay and affirmed the amount of the bond, but provided the court would review the sufficiency of the bond at a hearing held after November 19, 1989.

In December 1989, the Sharps filed a "Motion to Supplement Judgment and Motion to Increase Liability on Bond." The trial judge granted the Sharps' motion. The court's order purported to automatically vacate the stay if additional security in the amount of $136,800.99 was not posted by March 15, 1990. The order also awarded the Sharps additional attorney fees in the amount of $79,967.34 and post-judgment interest on the judgment through August 1, 1990. The trial judge subsequently amended the order to correct an error in the amount of interest awarded.

White Pine, in this appeal, challenges this amended post-judgment order claiming the district court erred in (1) providing for compound interest in the amended order, (2) lifting the stay of execution of judgment, and (3) improperly awarding additional attorney fees.

While this appeal was pending, White Pine filed a motion in the Utah Supreme Court for a stay pending action on its certiorari petition. The supreme court granted the motion for a stay and remanded the case to the district court to fix the amount of the bond. At that point, in August 1990, the parties entered into a stipulation wherein White Pine agreed to post an additional $136,800.99 in security as required under the amended order and the Sharps stipulated to the sufficiency of the security and agreed the stay of execution would continue through October 1, 1990, and thereafter until the district court considered the amount of an additional bond.

In November 1990, the Sharps filed a motion in the district court to correct the Amended Order and delete the language that White Pine argues in this appeal granted impermissible compound interest. In February 1991, the district court issued a "Third Amended Order Re: Defendant's Motion to Supplement Judgment and Motion to Increase Liability on Bond" omitting the controversial interest language.

I. COMPOUND INTEREST

White Pine argues the language of the amended order impermissibly awards the Sharps compound interest. See Mountain States Broadcasting Co. v. Neale, 783 P.2d 551, 554 (Utah App.1989).

Although the Sharps deny the language of the amended order had the effect of compounding interest, they, nevertheless, filed a motion with the district court in November 1990 to correct the prior order to delete the language which White Pine contends was improper. In February 1991, the district court granted the Sharps' motion and issued a third amended order deleting the language that purported to set out a "total judgment," and arguably awarding compound interest.

Generally, when substantive issues are resolved prior to appeal, the appeal is rendered moot. Salt Lake City v. Tax Comm'n, 813 P.2d 1174, 1177 (Utah 1991). As our supreme court has repeatedly stated, " 'when the requested relief cannot affect the rights of the litigants' we deem the case moot." Id. (quoting Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989); see also Spain v. Stewart, 639 P.2d 166, 168 (Utah 1981); Duran v. Morris, 635 P.2d 43, 45 (Utah 1981).

In the instant case, the language White Pine argued created compound interest was deleted from the amended order. Thus, the issue is now moot and we do not consider it.

II. STAY OF EXECUTION

White Pine presents an elaborate argument claiming the stay of execution was improperly vacated by the district court in its amended order. ³ We decline to address the multiple claims of error concerning the lifting of the stay as the relief White Pine requests on appeal would not affect the rights of the parties. See Salt Lake City v. Tax Comm'n, at 1177-78. ⁴

In August 1990, White Pine moved the supreme court for a stay pending action on a petition for certiorari. The supreme court granted the stay and remanded the case to the district court for the sole purpose of fixing the amount of the bond to be posted. Thereafter, the parties entered into a stipulation setting the bond at the amount set by the trial court in its amended order and continuing the stay pursuant to the specifications set out in the stipulation. ⁵ There is currently a stay of execution in existence.

III. ATTORNEY FEES

Finally, White Pine argues the district court erroneously awarded the Sharps post-judgment attorney fees. White Pine contends the order went beyond the district court's jurisdiction, was premature, and contrary to the court's judgment.

A. Jurisdiction

Initially, White Pine argues the district court had no jurisdiction to award additional attorney fees. White Pine relies on the principle that "the trial court is divested of jurisdiction over a case while it is under advisement on appeal." See White v. State, 795 P.2d 648, 650 (Utah 1990).

Generally, when a party files a timely notice of appeal, the court that issued the judgment loses jurisdiction over the matters on appeal. ⁶ As with many general rules, however, there are exceptions. Courts have concluded that even where a trial court is otherwise divested of jurisdiction due to an appeal, the trial court retains the power to act on collateral matters. ⁷ The Utah Supreme Court implicitly recognized this exception in White, indicating that to prevent unnecessary delay, "where any action by the trial court is not likely to modify a party's rights with respect to the issues raised on appeal," the trial court could act. 795 P.2d at 650. ⁸ Most appellate courts that have addressed the propriety of a post-judgment motion for attorney fees have concluded that the issue of attorney fees ⁹ involved a collateral matter, and thus the matter was appropriately considered by the trial court after an appeal was filed. ¹⁰

We conclude the trial court had jurisdiction to address supplemental attorney fees and the consequent modification of the bond as such matters were collateral to the underlying judgment and their resolution does not affect the issues presented in the appeal of the underlying judgment. ¹¹

B. Propriety and Timing of Award of Attorney Fees

White Pine also claims the district court awarded attorney fees contrary to the language of the underlying judgment. The judgment provided for supplemental attorney fees as follows: "this Judgment shall be supplemented and augmented in the amount of the Sharps' reasonable attorney's fees as established by affidavit and as incurred after August 31, 1988 in preparation of the Findings, Conclusions and Judgment, in responding to any post-trial motions, in collecting said Judgment by execution or otherwise, and after prevailing in any appeal."

White Pine contends the trial court erred in its award of attorney fees as the Sharps had not yet prevailed in the underlying appeal, nor did the court limit the fees awarded to the categories identified in the order. The Sharps respond that the supplemental attorney fees were awarded pursuant to the unambiguous language of the parties' real estate contract, and were not premature. ¹²

1. Nature of Fees

Where the terms of a contract provide for the award of attorney fees, such fees are "awarded as a matter of legal right." Saunders v. Sharp, 793 P.2d 927, 931 (Utah App.1990) (quoting Cobabe v. Crawford, 780 P.2d 834, 836 (Utah App.1989) (quoting Cabrera v. Cottrell, 694 P.2d 622, 625 (Utah 1985))). If reasonable fees...