Opinion
Case No. 20010261-CA.
FILED February 6, 2003. (Not For Official Publication)
Third District, Salt Lake Department, The Honorable Anne Stirba, The Honorable Pat B. Brian
Attorneys: Reid W. Lambert, Salt Lake City, for Appellants.
Rebecca S. Parr, Salt Lake City, and Craig M. White, Chicago, Illinois, for Appellees.
Before Judges Jackson, Bench, and Orme.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R.App.P. 29(a)(3).
"It is inappropriate for courts to weigh disputed material facts in ruling on a summary judgment. It matters not that the evidence on one side may appear to be strong or even compelling. One sworn statement under oath is all that is needed to dispute the averments on the other side of the controversy and create an issue of fact, precluding the entry of summary judgment." Lucky Seven Rodeo Corp. v. Clark, 755 P.2d 750, 752 (Utah Ct.App. 1988) (citations omitted). Also, "[i]f there is any doubt or uncertainty concerning questions of fact, the doubt should be resolved in favor of the opposing party." Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982). These settled principles control each of the issues Plaintiffs appeal, except for the question of attorney fees, which requires additional explanation.
We affirm summary judgment with respect to claim one. The claim is now moot because Fife and URI executed the employment agreement. Also, the only term required to be included in the employment contract, that Fife receive a salary of no more than $200,000, was included.FootnoteAccordingly, this claim is moot. See Duran v. Morris, 635 P.2d 43, 46 (Utah 1981); Wickham v. Fisher, 629 P.2d 896, 900 (Utah 1981) ("Generally, an actual controversy must exist at the stage of appellate review[.]").
We reverse the summary judgment as to claim two. Defendants presented evidence that they did "account for, pay, compromise, unwind, and/or terminate all existing contractual relationships" with MGO. However, whether they used their "best efforts" in doing so, pursuant to paragraph 1.l of the settlement agreement, is an unresolved question of fact under the rationale of Lucky Seven Rodeo Corp. and Bowen.
We affirm the grant of summary judgment as to claim three. Paragraph 1.f, the provision that Plaintiffs claim was violated by the grant of stock options, says nothing about stock options. We decline Plaintiffs' invitation to read more into that provision than is actually articulated.
We reverse the trial court's grant of summary judgment with respect to claim four. Whether an employment contract existed with Hurd is an unresolved question of fact. Hurd testified that he received the options "because of [his] contribution as [an] employee of the company." Evidence that a party began performance on a contract by, for example, beginning to compensate an employee for services certainly suggests that an employment contract was "effectuated." As discussed below, if the trial court finds at trial that an employment contract was, in fact, "effectuated" and that the contract was terminated (or the compensatory stock options not given effect) only because of the lawsuit, Plaintiffs will be the "prevailing party" on this issue and will be entitled to attorney fees.
We affirm the grant of summary judgment as to claim five. Although "[o]ne sworn statement under oath is all that is needed to . . . create an issue of fact, precluding the entry of summary judgment," Lucky Seven, 755 P.2d at 752, such statement must "set forth such facts as would be admissible in evidence." Utah R.Civ.P. 56(e). The trial court concluded that Plaintiffs' evidence regarding this claim was inadmissible, and Plaintiffs fail to cite any legal authority demonstrating that the trial court was incorrect. Because we are not "`"a depository in which the appealing party may dump the burden of argument and research,"'" Water Energy Sys. Tech., Inc. v. Keil, 2002 UT 32,¶ 21, 48 P.3d 888 (citations omitted), we do not further consider Plaintiffs' contentions regarding this claim.
We affirm summary judgment as to claim seven, as Plaintiffs concede that we should. The recipients of the stock options voided the options, rendering this claim moot, albeit with an unresolved question concerning attorney fees.
We vacate the grant of summary judgment as to claim ten, but without prejudice to the trial court's reentry of summary judgment if appropriate. The trial court should not reenter judgment, however, without further explaining its reasoning in determining that URI's reimbursement policy required preapproval of director expenses, despite the apparent exceptions that Plaintiffs cite. Also, in reexamining this claim, the trial court must not make what amount to credibility determinations regarding the affidavits submitted by each side. See Lucky Seven, 755 P.2d at 752.
Given our decision, we must also vacate the award of attorney fees. The trial court should award attorney fees to the "prevailing party" on each of the contract-based claims when finally resolved on remand. In the interest of judicial economy, we offer the following principles of well-settled law as "guidance to the trial court on remand." Kilpatrick v. Wiley, Rein Fielding, 2001 UT 107,¶ 85 n. 16, 37 P.3d 1130.Footnote
First, "attorney fees in Utah are [generally] awarded only as a matter of right under a contract or statute. Fees provided for by contract, moreover, are allowed only in strict accordance with the terms of the contract." Foote v. Clark, 962 P.2d 52, 54 (Utah 1998) (citations omitted). The contract in this case — the settlement agreement — allows attorney fees to be awarded to "the prevailing party" only for claims brought "under this Agreement." Therefore, the trial court should not award attorney fees for noncontract claims unless such an award is based on some other articulated basis.
Second, the Utah Supreme Court has ruled that a party is a "prevailing party" if the opposing party's tardy compliance comes as a result of a lawsuit. Highland Constr. Co. v. Stevenson, 636 P.2d 1034, 1038 (Utah 1981). Therefore, with respect to claims one, four, and seven, the trial court should evaluate whether Defendants' compliance was a result of Plaintiffs' suit. Plaintiffs have the burden of persuasion. See Foote, 962 P.2d at 55. If they meet their burden, the trial court should award them appropriate attorney fees with respect to those claims. Footnote
Third, Plaintiffs have not demonstrated that the trial court abused its discretion in finding Defendants' counsels' billing rates to be "reasonable." See Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). Given the minimal evidence that Plaintiffs introduced in arguing against these billing rates, it was within the trial court's discretion to determine that the rates were reasonable.
We remand the case to the trial court for such proceedings as may now be appropriate and to finalize a judgment and net attorney fee award consistent with the foregoing.
I CONCUR: Norman H. Jackson, Presiding Judge.
I CONCUR IN THE RESULT: Russell W. Bench, Judge.