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Trayner v. Cushing

LEXSEE 688 p2d 856

Herbert O. TRAYNER, an individual, and Trayner Investments
Corporation, a Utah corporation, Plaintiffs and Respondents,
v. Robert CUSHING, an individual, Defendant and Appellant

No. 18732

Supreme Court of Utah

688 P.2d 856; 1984 Utah LEXIS 916

September 7, 1984, Filed


Brant H. Wall, Salt Lake City.

James A. Boevers, Salt Lake City; Gordon Strachan, Salt Lake City.

Zimmerman, Justice, does not participate herein.



[*857] Plaintiffs sued on a contract under which they constructed and sold
a single family dwelling to defendant. The contract of sale was written on a
standard form earnest money agreement and offer to purchase, but it was modified
by oral agreement that "extras" would be provided as requested by defendant and
charged at the contractor's (plaintiffs) cost. The house was completed and the
sale closed. At the closing, the price agreed under the written contract was
paid. The parties could not agree with respect to the price of the extras,
however, and that amount was not paid.

Plaintiffs brought action, claiming $9,130.77 for the extras and, in
addition, claiming that the $2,500 earnest money was never paid, though they had
acknowledged receipt of that amount by signing the earnest money receipt and
again by signing the closing statements.

Defendant answered, alleging that plaintiffs had overcharged him in his claim
for the extras, but admitting that he owed plaintiffs $2,990. He denied that
the [**2] earnest money had not been paid, and he counterclaimed for $2,250
for repairs due to faulty workmanship on the part of plaintiffs.

The trial court, sitting without a jury, found that plaintiffs had not
carried their burden of proving that the earnest money had not been paid and
denied judgment for that amount. The court further found that plaintiffs had
overcharged defendant for the extra work by charging the retail price of
electrical fixtures unreduced by the contractor's discounts and by failing to
give defendant credit for returned items. In addition, the court granted
defendant damages for repairs necessitated by faulty workmanship on the part of
688 P.2d 856, *857; 1984 Utah LEXIS 916, **2


The net judgment after credits and offsets was in favor of plaintiffs in the
amount of $6,326.88. The court also awarded attorney fees of $2,500 to
plaintiffs. Defendant challenges only the award of attorney fees on appeal.

The written earnest money agreement and offer to purchase, signed by both
parties, provides:

We do hereby agree to carry out and fulfill the terms specified above . . . . If
either party fails to do so, he agrees to pay all expenses of enforcing this
agreement, or any right arising out of [**3] breach thereof, including
attorney's fees.

Defendant first contends that this provision of the written agreement does
not apply to the oral amendment of the contract. He reasons that because
plaintiffs recovered judgment only for the extras provided by the oral contract,
they were not entitled to an award of attorney fees under our rule that such
fees are awarded only if there is a contractual or statutory liability therefor.

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n1 Stubbs v. Hemmert, Utah, 567 P.2d 168 (1977); Walker v. Sandwick, Utah,
548 P.2d 1273 (1976).

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Defendant raises this point for the first time on appeal. He did not present
to the trial court the question of whether the oral agreement was a separate
contract or a modification of the written agreement. In fact, the case was
tried by both parties upon the assumption that the oral agreement was a
modification of the written agreement and was therefore a part of it. Issues
not presented to the trial court for decision are not reviewable by this Court,
n2 and we express no [**4] opinion on the issue.

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n2 Nelson v. Newman, Utah, 583 P.2d 601 (1978).

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Secondly, defendant contends that he, rather than plaintiffs, is entitled to
an award of attorney fees under the theories: (1) that plaintiffs breached the
contract by charging retail price for some items rather than contractor's cost,
as agreed; and (2) that defendant was the "prevailing party" in the action,
because he won a greater percentage of his counterclaim than plaintiffs won on
their complaint when the judgment is reduced by the amount defendant admitted
was owing for the extras.

[*858] Where the parties have agreed by contract to the payment of attorney
fees, the court may award reasonable fees in accordance with the terms of the
parties' agreement. n3 The amount to be awarded is largely within the sound
discretion of the trial court, n4 but such factors should be considered as the
relationship of the fee to the amount recovered, the novelty and difficulty of
688 P.2d 856, *858; 1984 Utah LEXIS 916, **5

the issues involved, the overall result achieved and the necessity [**5] of
initiating a lawsuit to vindicate rights under the contract. n5 In addition, a
party is entitled only to those fees attributable to the successful vindication
of contractual rights within the terms of their agreement. n6

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n3 Turtle Management, Inc. v. Haggis Management, Utah, 645 P.2d 667 (1982).

n4 Id.

n5 Id.

n6 See, e.g., Stubbs v. Hemmert, supra n.1, where plaintiff was allowed fees
only for time his attorney spent in foreclosure of a note and mortgage and not
for the defense of a counterclaim on which cause of action no agreement for
payment of attorney fees had been made, and Paul Mueller Co. v. Cache Valley
Dairy Assoc., Utah, 657 P.2d 1279 (1982), where this Court affirmed an award to
defendant for fees attributable to time spent in defense of plaintiff's
complaint, but agreed with the trial court that defendant was not entitled to
fees attributable to pursuing a counterclaim on which he was not successful.

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Counsel for both parties cite and discuss cases awarding attorney [**6] fees
to the "prevailing party" or to the party "not in default." Neither of these
phrases was used in the agreement before us. These parties have agreed instead
to the payment of attorney fees in an action brought to "enforce" the agreement
"or any right arising out of breach thereof." The question before the trial
court was: which party "enforced" the agreement against the other? Each of
these parties had rights under the agreement that were denied him by the other.
Each was required to take legal action to enforce the agreement in one or more
particulars. Each was successful on one or more points and unsuccessful on
others. Each was therefore entitled to an award of attorney fees for
successfully enforcing the agreement against the other.

At trial, defendant suggested that both parties might be entitled to attorney
fees, depending upon the court's resolution of the issues, but the judge stated
he was of the opinion that fees should go only to the prevailing party. The
court therefore awarded fees only to plaintiffs since the net judgment was in
their favor. The court was in error in making this award, both in failing to
recognize that some part of the time charged by plaintiffs' [**7] attorney
was spent in defending the counterclaim on which he was not successful and in
failing to award defendant any fees for enforcing his rights under the contract.

The award of attorney fees is reversed, and this case is remanded to the
district court for further proceedings not inconsistent with this opinion.
Costs to defendant. n7

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n7 No award of attorney fees for prosecuting or defending this appeal is made
since defendant, the successful party on appeal, has not requested such an
award. See Management Services v. Development Assoc., Utah, 617 P.2d 406
(1980), in which this Court held that attorney fees on appeal may be awarded
688 P.2d 856, *858; 1984 Utah LEXIS 916, **7

where there is a contractual obligation therefor.


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