Memorandum Decision
1] 1 Michael and Wanda Austin appeal from certain portions of a damages award in favor of Jon and Adree Bingham. We affirm and remand to the trial court for calculation of the attorney fees that the Binghams incurred on appeal.
T2 The Austins and the Binghams are neighbors in rural Neola, Utah. The Bing-hams have a private right-of-way to access their residence over the Austins' property. That right-of-way has existed for over thirty years, and during much of that time, it was the only access to the Bingham parcel.
T8 In January 2009, things changed dramatically. The Austins started interfering with the Binghams' use of the right-of-way by closing the barbed wire gates. There were three gates along the right-of-way: one at the county road, one at the beginning of the pasture near the Austins' home, and one at the end of the Austins' pasture. To open these gates, a person using the right-of-way would have to exit his or her vehicle and unloop the barbed wire from a fence post. On the first day that the Austins closed the gates, Mrs. Austin called the Binghams, "quite upset" and "yelling" that the Austins had "warned [the Binghams] that [they] were going to close [the] gates" if the speeding on the right-of-way road continued. When Mr. Bingham explained to Mrs. Austin that closing the gates was unacceptable because Mrs. Bingham and many of the Binghams' guests would be unable to open the gates, Mrs. Austin said, "Well, that's not my problem" and hung up the phone. The Austins soon began routinely closing the gates after each person drove down the right-of-way and insisted that the Binghams and their guests do the same. The Austins' demands were often accompanied by shouted profanities The Binghams declined to close the gates, however, and the dispute soon escalated.
{4 Whenever the Binghams traveled the right-of-way, the Austins would follow "right on [their] bumper ... shutting the gates." If Mrs. Bingham arrived at the gate while the Austins were in the process of closing it, she would have to wait until they closed the gate and then exit her vehicle to reopen it. The Austins also began tightening the barbed wire strands, making the gates increasingly more difficult to open because opening each gate required pulling the gate post against the tension of the barbed-wire gate strands in order to disengage the top of the gate post from the wire loop that secured it to the adjacent fence post. The difficulty was further complicated by the gates' placement over metal cattle guards, which required "stand[ing]l on slippery bars" while unlooping the wire gate from the fence post. Mrs. Bingham and female guests often seraped their hands and tore their clothing while struggling with the fence. Once, when Mrs, Bingham was unable to open the middle gate, Mr. Austin locked the first gate behind her and left, stranding her in the pasture. On another occasion, the Austins used baling twine to knot a gate shut, and Mr. Bingham had to cut the twine in order to get the gate open. Later, the Austins installed panels that latched to the wire gates and used biey-cle combination locks to secure them. Those locks were difficult to open in the dark and often froze in the winter.
T5 In March 2009, a visiting friend and her children were trying to get to the Bing-ham property when Mr. Austin came out of the house and physically blocked the friend from opening the gate. Mrs. Bingham, accompanied by her two young children, went down to intervene. By the time she arrived, Mrs. Bingham's friend and her children were crying. Mr. Austin "started yelling" at Mrs. Bingham and said "he was not going to let [the friend] through" because she was not "using] this right-of-way correctly." Mr. Austin continued yelling and was "obviously very, very angry," so Mrs. Bingham called the police.
I 6 Angry confrontations became more and more frequent. A neighbor testified that he and his wife were traveling the right-of-way after picking up their children from the Bing-ham house when Mrs. Austin "came to the window yelling profanity." The neighbor later returned to the Austing' house to talk with them about their behavior, and Mr. Austin chased him off the porch, threatening to beat him. At that point, the neighbor testified, Mr. Austin told him that the Austins' actions were intended to "get under [the Binghams'] skin" and that Mr. Austin "would get Johnny [Bingham]" by "hid[ing] behind the tree ... and ... knock[ing] him." Another neighbor reported that on a cold, wet spring day, he struggled with the combina
T7 During this same time period, the Austins also prohibited the Binghams from maintaining the right-of-way. On one occasion, Mrs. Austin stood in the middle of the road and refused to move until the plowing ceased. She ordered the Binghams to "not plow this road again." On another occasion, Mr. Bing-ham was filling in some of the deeper ruts in the road when Mr. Austin came out yelling that Mr. Bingham had "no right" to repair the road and demanding that Mr. Bingham leave before "I tear this whole thing up."
18 Mrs. Bingham testified that she thought that Mrs. Austin "hasn't liked us there" because "the road [has been] used on a regular basis" since the Binghams moved onto the parcel. Mrs. Bingham further testified that she felt threatened by the Austins conduct and that on at least one occasion, she had called a sheriff to escort her and her children back to her house after a confrontation with Mr. Austin at one of the gates on the right-of-way. Eventually, Mrs. Bingham sought medical treatment for the stress and anxiety produced by the dispute.
1 9 As the dispute escalated, the Binghams proposed several alternatives to closing the gates, including improving the cattle guards to make them effective at keeping the cattle in pasture, installing an automatic gate, and building a privacy fence between the right-of-way and the Austins' home. Although the Binghams offered to undertake these improvements at their own expense, the Austins rejected all of the proposals. Around this time, "[olut of concerns for safety," a neighbor granted the Binghams permission to access their property through his pasture. Mr. Bingham installed a fence and culverts to make a passable lane, but this alternative route was difficult to traverse, hard on vehicles at best and unusable in wet conditions.
{10 The Austins commenced legal action against the Binghams in June 2009. The Binghams counterclaimed, seeking compensatory and punitive damages for the additional costs, distress, inconvenience, and humiliation resulting from the Austing' interference with their use of the right-of-way. The trial court entered temporary orders to govern the right-of-way pending trial. Among other things, these orders directed the Austins to leave the pasture gates open, except on Wednesdays and Fridays when they were permitted to graze cattle on the right-of-way, and instructed the Binghams to take certain steps to make the cattle guards along the right-of-way functional. Despite the court's orders and the Binghams' compliance with their obligation, the Austins continued to close the right-of-way gates. They also told the court at trial that they would continue to close the gates even if the court ordered them to leave them open after trial.
T 11 After hearing the evidence at a bench trial in June 2012, the trial court found "that the Binghams' version of the facts [about the right-of-way dispute] is more credible." Accordingly, the trial court dismissed the Austins claims and awarded the Binghams $109,591 in damages, including punitive damages and attorney fees. The trial court awarded the Binghams $20,000 in punitive damages as a consequence of the Austins "willful and malicious actions interfering with [the Binghams'] use of the right-of-way[,} their harassment ... [of] persons attempting to enter and leave the Binghams' homel{,] and their repeated refusal to obey the temporary orders entered in this case." The court awarded the Binghams all $48,897 of their attorney fees because the Austing' claims and their defenses to the Binghams' suit lacked merit and were brought in bad faith. The Austins now appeal the factual findings supporting four of the components of the damages award, totaling $30,600: $3,000 for Mrs. Bingham's medical treatment, $7,000 for Mr.
I. $3,000 in Medical Expenses
112 The Austins argue that the trial court clearly erred in finding that "Mrs. Bingham required] medical services and medication costing $8,000" to cope with the stress and anxiety resulting from the right-of-way dispute. Appellate courts "shall not ... set aside [a finding of fact] unless clearly erroneous," Utah R. Civ. P. 52(a), and the Austins appear to take the position here that "the finding is without adequate evidentiary support," see Hale v. Big H Constr., Inc.,
must present the evidence in a light most favorable to the trial court and not attempt to construe the evidence in a light favorable to [his or her] case. [The challenging party] cannot merely present carefully selected facts and excerpts from the record in support of [his or her] position. Nor can [he or shel simply restate or review evidence that points to an alternative finding or a finding contrary to the trial court's finding of fact.
Chen,
{13 The Austins have failed to meet this burden. Their approach to this issue seems to focus on three principal arguments about the evidence before the trial court. Their first contention is based on a recital of evidence that supports their position that Mrs. Bingham's medical treatment was unrelated to the Austins' interference with the right-of-way. By focusing on that evidence, the Austins largely ignore significant evidence from the Binghams that supports the court's decision that Mrs. Bingham's medical issues resulted from the Austins' actions. For example, the Binghams described multiple acts of intimidation and harassment by the Austins in the two months before Mrs. Bingham sought medical treatment. Mrs. Bingham testified that she had been the target of at least two verbal assaults by the Austins in early 2009 and reported that the ongoing dispute had caused her to be "worried about the safety of [her] children ... [,] about the safety of [her] husband daily ... [, and] about the safety of [herJself." She told the court that it was due to the Austing' "threats" that she "checked [her] self into the ER" in March 2009. This evidence demonstrates that the Austins have failed to bear their burden on appeal of showing that the trial court clearly erred in finding that Mrs. Bingham sought medical treatment because of the Austins' conduct.
14 Second, the Austins claim that certain testimony offered by a neighbor about a particular threat to Mr. Bingham was hearsay and that the cause of Mrs. Bingham's medical needs was the birth of her child, not the Austins' behavior. These issues are not preserved because the Austins neither objected to the neighbor's testimony at trial nor argued to the trial court that the reason for Mrs. Bingham's medical treatment was the
T 15 Finally, the Austins contest the $3,000 award on the basis that the Binghams did not provide any receipts or documentation at trial to demonstrate that they incurred the claimed expenses or that the expenses were not covered by insurance. Mrs. Bingham, however, testified that the "ER visits are around $1500. The medication was very expensive.... We figured all in all we were into it about $3000." This testimony supports the court's decision. The absence of documentary evidence is not fatal to the Binghams' claim for medical damages. Although it is true that documentary evidence, such as bills or receipts, may provide a more accurate picture of the scope of the damage, "trial courts are often faced with the necessity of making factual findings based exelusively on oral testimony." Henshaw v. Henshaw,
1 16 In sum, there is evidence to support the trial court's finding that Mrs. Bingham incurred $3,000 in medical treatment as a result of the Austins' behavior in connection with the right-of-way dispute, and we will not disturb it.
II. $7,000 for Interference with the Right-of-Way
117 The Austins also challenge the trial court's findings that "the Binghams sustained ... $7,000[ ] in damages for [the] inconvenience of unnecessarily opening and closing gates" along the right-of- way "for 1,232 days ... an average of 4 times a day." The Austins challenge these findings by arguing that the damages are based on approximations and do not accurately reflect the Binghams' usage.
T18 The Austins first contend that the Binghams failed to adequately establish the amount of damages because they based their costs on approximations. To recover damages, a party must prove the fact that damages occurred and the amount of those damages. Atkin Wright & Miles v. Mountain States Tel. & Tel. Co.,
119 Proof of the amount of damages does not require precision. Cook Assocs., Inc. v. Warnick,
T20 At trial, Mr. Bingham testified that for a period of 1,200 days,
121 Next, the Austins contend that the court's findings that the Binghams were damaged by having to open the gates four times a day for all 1,282 days that the gates were closed was erroneous because it failed to take into account any decreased usage on weekends, holidays, sick days, vacations, etc. Mr. Bingham testified, however, that he used the right-of-way four times a day every day for 1,200 days, and the Austins failed to elicit any contrary testimony. Thus, given Mr. Bingham's undisputed testimony, there is evidence to support the court's findings that "the Binghams sustained ... damages for [the] inconvenience of unnecessarily opening and closing gates" along the right-of-way "for 1,232 days ... an average of 4 times a day." See generally Hale v. Big H Constr., Inc.,
III. $8,600 for Improvement of the Alternative Entrance Way
T22 The Austins contend that the trial court's finding that the Binghams "spent $8,600.00 in fencing and culverts to make the alternate route usable" is clearly erroneous. To support this position, they assert that Mr. Bingham offered testimony about the cost of the improvements on the first day of trial ($8,000) that was inconsistent with his testimony on the second day ($8,600), rendering his estimate of damages too unreliable to support the trial court's award. They also
1 23 Mr. Bingham testified on the first day of trial that he "put in $8000 worth of eul-verts and fence" to improve the neighbor's pasture enough to make it passable. On the second day of trial, Mr. Bingham testified that he had made "some effort to try to put some numbers to it" and that "to just make [the alternative route] passable by putting culverts and fence ... was almost $8600." A $600 inconsistency, explained as the result of further reflection about the matter overnight, does not seem to be so significant as to render the whole of his testimony incredible or speculative or to render clearly erroneous the court's determination that Mr. Bingham's testimony was credible. See Woodward v. LaFranca,
124 Furthermore, the absence of documentary evidence to support Mr. Bingham's claim for $8,600 in improvement damages does not render the court's finding clearly erroneous. As discussed above, see supra 115, written documentation can, at times, carry greater weight than oral testimony about damage amounts, but trial courts are capable of making findings from oral testimony as well. Henshaw,
IV. $12,000 for Additional Time and Travel
§25 The Austins also assert that the trial court's decision to award the Binghams $12,000 for the extra time and travel Mrs. Bingham expended to use the alternative entrance is not supported by sufficient evidence. The court awarded the Binghams $4,000 to compensate them for Mrs. Bing-ham's having to "travel 8/10 of a mile longer to and from their home averaging ten times a day for 10183 days for a total of 8104 miles." The 8,104 miles could be traveled at no more than 20 miles per hour, and thus the court also awarded the Binghams $8,000 for the "405 hours additional time" it took to drive the alternative route. In calculating the damage award for additional travel time, the court accepted testimony that Mrs. Bing-ham's additional time should be compensated at a rate of $20 an hour.
1126 The Austins raise three concerns regarding the court's award of $12,000 in damages for additional travel time. First, they seem to challenge the mileage and time calculations. Second, they challenge the usage estimation. Finally, they challenge the valuation of Mrs. Bingham's time.
27 First, the Austins appear to claim that there is insufficient evidence to support the trial court's findings that Mrs. Bingham spent 405 additional hours to travel an additional 8,104 miles on the alternative route between June 2009, when the alternative route was built, and June 2012, when trial was held. The Austins, however, have failed to acknowledge evidence in the record that supports the court's determination. See generally Utah R. Civ. P. 52(a) (directing appellate courts not to "set aside [a finding of fact] unless clearly erroneous"); Hale v. Big H Constr., Inc.,
28 The Austins' second argument is that the court's findings did not take into consideration the number of days that the alternative entrance was not used due to wet conditions that made the route impassable or the weekends, holidays, sick days, vacation days, ete. when Mrs. Bingham's use of the alternative route diminished. As with the use of the right-of-way, there was testimony from both Mr. and Mrs. Bingham that she used the alternative entrance for 1,000 days, and Mr. Bingham testified that Mrs. Bingham took ten trips a day on the alternative route. The Austins did not elicit any evidence about decreased usage on weekends or holidays or due to illness or travel. While the Austins' claim that the alternative route was sometimes impassable has support in the record, it appears that Mr. Bingham discounted his estimate in the first place. Mrs. Bingham testified that the alternative route had existed for a couple of years "since about the time . this litigation commenced" on June 1, 2009. Between June 1, 2009, and June 13, 2012, when trial concluded, 1,108 days had elapsed. Mr. Bingham's figure of 1,000 days therefore seems to leave room for periods of time when the alternative route was impassable. And although the Austins contend that there was conflicting testimony in the record that demonstrated that Mrs. Bingham used the right-of-way through the Austins' property at least some of the time during the more than 1,000 days that the alternative entrance was available, we defer to the trial court's superior ability to evaluate and weigh the evidence and the relative credibility of each witness, Henshaw v. Henshaw,
129 Finally, the Austins claim that Mr. Bingham's testimony that Mrs. Bingham's time is worth $20 per hour lacks foundation because it is not supported by any work or educational history or any information about prevailing wages in the area. In essence, the Austins are objecting to the admissibility of the evidence for lack of foundation. But the Austins made no such objection to this evidence at trial and instead have raised the issue for the first time on appeal. "To preserve a contention of error in the admission of evidence for appeal, a defendant must raise a timely objection to the trial court in clear and specific terms." Winward v. Goodliffe,
30 Because the objection cannot be considered for the first time on appeal, we must treat the testimony that Mrs. Bingham's time
131 Accordingly, we conclude that the Austins' challenges to the trial court's findings with regard to Mrs. Bingham's additional time and travel are not well taken.
V. Attorney Fees on Appeal
132 The Binghams request their attorney fees on appeal. The trial court awarded attorney fees to the Binghams pursuant to the bad faith statute because "the vast majority of the [Austins] claims and more importantly the defenses of the Austins ... have been without factual or legal merit" and were not brought in good faith. See Utah Code Ann. § 78B-5-825 (LexisNexis 2012) ("In civil actions, the court shall award reasonable attorney 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."). The Austins have not challenged the propriety of the court's award of fees under the bad faith statute.
133 "[Wlhen a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." Valcarce v. Fitzgerald,
VI Conclusion
11 34 We affirm the damages judgment for the Binghams. We grant the Binghams' request for their attorney fees incurred on appeal and remand for the trial court to calculate the amount.
Notes
. The Austin and Bingham parcels were originally one parcel, but in 1975, the title was split and the right-of-way was created. The Austins have resided on their parcel since 1985. The Bing-hams moved into the home on their parcel in 2007. Prior to the Binghams' ownership, no one had resided on the Bingham parcel for more than sixteen years. ©
. From the time the Austins began closing the gates in January 2009 until trial in June 2012, 1,232 days had elapsed. Mr. Bingham apparently rounded this figure down and referred to the time period as 1,200 days. The trial court was more precise and referred to the actual number of elapsed days. The thirty-two day difference does not affect our analysis, and for accuracy, we use the 1,200-day figure when referring to Mr. Bingham's testimony and the 1,232-day figure when referencing the court's decision.