Dale K. Barker Co., Pc v. John K. Bushnell

2010 UT App 189, 237 P.3d 903, 660 Utah Adv. Rep. 15, 2010 Utah App. LEXIS 189, 2010 WL 2776338
CourtCourt of Appeals of Utah
DecidedJuly 15, 2010
Docket20080956-CA
StatusPublished
Cited by3 cases

This text of 2010 UT App 189 (Dale K. Barker Co., Pc v. John K. Bushnell) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dale K. Barker Co., Pc v. John K. Bushnell, 2010 UT App 189, 237 P.3d 903, 660 Utah Adv. Rep. 15, 2010 Utah App. LEXIS 189, 2010 WL 2776338 (Utah Ct. App. 2010).

Opinion

237 P.3d 903 (2010)
2010 UT App 189

DALE K. BARKER CO., PC, Plaintiff and Appellant,
v.
JOHN K. BUSHNELL and Bushnet, PC, Defendant, Third-party Plaintiff, and Appellee,
v.
Dale K. Barker, Third-party Defendant.

No. 20080956-CA.

Court of Appeals of Utah.

July 15, 2010.

*905 Shawn D. Turner, Salt Lake City, for Appellant.

David P. Hirschi and Brennan H. Moss, Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and THORNE.

OPINION

ORME, Judge:

¶ 1 Plaintiff Dale K. Barker Co., PC (Barker Company) appeals the trial court's determinations that defendant John K. Bushnell and his corporation, Bushnet, PC, did not breach the contracts each of them entered into with Barker Company and that Barker Company breached its agreement with Bushnell. With respect to these issues, we affirm. Barker Company also appeals the magnitude of the trial court's award of attorney fees and costs to Bushnell. In this one respect, we reverse and remand.

BACKGROUND

¶ 2 In April 2005, Barker Company and Bushnell entered into a contract in which Barker Company agreed to review and prepare several overdue tax returns and negotiate with the IRS on Bushnell's behalf. In September 2005, Barker Company entered into a similar agreement with Bushnet. Both contracts included this language: "Barker [Company] agrees to perform the following services for [Bushnell and Bushnet, respectively], including such additional services related thereto which are reasonably required: (a.) All requested services as set forth by [Bushnell and Bushnet, respectively] and as understood by Barker [Company] either express, written, or/and implied." After a dispute arose regarding Barker Company's charges, which exceeded $64,000,[1] Barker Company filed a complaint against Bushnell and Bushnet alleging breach of contract for failure to fully pay for the services Barker Company provided. Bushnell filed counterclaims against Barker Company for negligence and breach of contract.[2] During the subsequent bench trial, the trial court dismissed Bushnell's negligence counterclaim, leaving Bushnell's counterclaim for breach of contract as Bushnell's only surviving claim.

¶ 3 At the conclusion of the trial, the court made factual findings that the contracts "d[id] not specifically indicate which work must be performed by Barker [Company], nor d[id] [the contracts] indicate the amount that must be paid for work performed." Therefore, "the [c]ourt applie[d] a reasonable and necessary standard to determine whether the work done by Barker [Company] was required under the contract." The court determined that Barker Company's considerable work in compiling Bushnell and Bushnet's financial information "was not reasonable and necessary in order to accomplish the tasks required by the contract" because the "information was [already] organized in the `Quicken' program" that Barker Company had received from Bushnell and Bushnet. The court also found that the amount Bushnell and Bushnet had already paid for "research, conferences, meetings, correspondences, etc." satisfied their contractual obligations. Based on these findings, the trial court determined that Bushnell and Bushnet had not breached their contracts with Barker Company by not paying the remaining amounts claimed by Barker Company.

¶ 4 The court also determined that Barker Company had breached its contract with Bushnell because Barker Company "fail[ed] to meet deadlines that it had agreed upon with the IRS, fail[ed] to meet other deadlines set by the IRS, fail[ed] to prevent federal tax liens from being recorded against Mr. Bushnell's property, [and] fail[ed] to properly prepare the 1999 ... and ... 2004 tax return[s]."[3]*906 Ultimately, the court decided that Bushnell was only "entitled to nominal damages in the amount of $10.00."[4]

¶ 5 With regard to attorney fees and costs, the contracts stated that "[i]n the event of a breach of this Agreement, the non-defaulting party shall be entitled to all costs and attorneys' fees incurred in enforcing this Agreement or in seeking any other remedy." The trial court determined that Bushnell and Bushnet were entitled to "receive all costs and attorneys' fees ... incurred relating to [their] defense of [Barker Company]'s action for breach of contract" and that Bushnell was entitled to "all costs and attorneys' fees ... incurred" in his breach of contract counterclaim. Bushnell was awarded the costs and fees it requested: $79,108.50 in attorney fees and $32,013.20 in costs.[5]

ISSUES AND STANDARDS OF REVIEW

¶ 6 Barker Company challenges both the trial court's factual findings and its legal conclusions leading to the determination that Bushnell and Bushnet did not breach the contracts but that Barker Company had breached its contract with Bushnell. We review the trial court's factual findings under a clearly erroneous standard. See Utah State Tax Comm'n v. Stevenson, 2006 UT 84, ¶ 23, 150 P.3d 521. But we require that a party challenging the factual findings begin by properly marshaling the evidence in support of the findings. See Utah R.App. P. 24(a)(9) ("A party challenging a fact finding must first marshal all record evidence that supports the challenged finding."); Kimball v. Kimball, 2009 UT App 233, ¶¶ 20 n. 5, 21, 217 P.3d 733 (explaining the marshaling requirement); West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991) (same).

A contract's interpretation may be either a question of law, determined by the words of the agreement, or a question of fact, determined by extrinsic evidence of intent. If a trial court interprets a contract as a matter of law, we accord its construction no particular weight, reviewing its action under a correctness standard. However, if the contract is not an integration or is ambiguous and the trial court proceeds to find facts respecting the intentions of the parties based on extrinsic evidence, then our review is strictly limited.

Peterson v. Sunrider Corp., 2002 UT 43, ¶ 14, 48 P.3d 918 (citation and internal quotation marks omitted).

¶ 7 Barker Company also challenges the amount the trial court awarded in attorney fees and costs to Bushnell. "The trial court has broad discretion in determining what constitutes a reasonable attorney fee once it has been determined that a party is legally entitled to a fee award, and we will not reverse a trial court's determination of whether a fee is reasonable absent an abuse of discretion." Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 33, 52 P.3d 1179. However, "[a]n award of attorney fees must be based on the evidence and supported by findings of fact." Foote v. Clark, 962 P.2d 52, 55 (Utah 1998) (citation and internal quotation marks omitted). "[W]hether the findings are sufficient to support the award is a question of law reviewed for correctness." Id.

ANALYSIS

I. Breach of Contract

¶ 8 Barker Company argues that the trial court erred in its breach of contract determinations.[6] Because Barker Company *907 failed to marshal all the evidence supporting the findings, see generally Utah R.App. P. 24(a)(9); Eggett v. Wasatch Energy Corp.,

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Bluebook (online)
2010 UT App 189, 237 P.3d 903, 660 Utah Adv. Rep. 15, 2010 Utah App. LEXIS 189, 2010 WL 2776338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dale-k-barker-co-pc-v-john-k-bushnell-utahctapp-2010.