*1 HIGHLAND CONSTRUCTION COMPA
NY, corporation, a Utah Appellant, STEVENSON,
LaMar D. D. dba LaMar Company,
Construction United States
Fidelity Guaranty Company,
Maryland corporation, and Shell Oil
Company, corporation, a Delaware De Respondents.
fendants and
LaMar D. dba D. LaMar Company,
Construction
Third-Party Plaintiff.
No. 17099.
Supreme Court of Utah.
Aug. 1981.
Opinion Rehearing Dec.
HOWE, Justice: by an of an action appeal arises out This sub-contractor, Highland Con- excavating Highland), (hereinafter Company struction contractor, D. LaMar against general (herein- Company Construction Stevenson Stevenson), bonding com- Stevenson’s after Guaranty Fidelity and pany, United States USF&G), and Shell (hereinafter Company Shell). Highland (hereinafter Oil as a result damages it suffered alleged that plans and unrea- construction of defective and Shell delays by Stevenson sonable The trial of their work. performance found no cause sitting jury, without a of Ste- of action on all claims declaratory for a venson’s counterclaim properly had been judgment that for certain back-charged by Stevenson also awarded granted. The court items was High- attorney’s fees and costs. appeals. land entered August On of Utah with the State into a contract with the work in connection all perform the Du- what is known as of construction Project. The River Road chesne Highway a section of State upgrade was to Duchesne, Utah. 35, of miles north located 5 August Ste- week During the first have it negotiated venson work. the earth perform some High- culminated negotiations These moving, the earth agreement to do land’s This excavation. roadway including the put into Stevenson-Highland contract August or about signed on writing and August 9. was dated president negotiations, During these inspected Bergener, Bryan Highland, times, required as site a number be- general terms of by the tween Stevenson the Steven- into by reference incorporated son-Highland sub-contract. project site moved onto Christensen, Martineau, Roger P. Ray G. for the area preparing clearing and began appellant. City, Lake
Salt 12, it August By August 6. excavation water saturated areas of Wilkinson, Hirschi, Le- had encountered David L. J. Rand condi- These road base. unstable Ford, for defend- City, Lake land D. Salt sub-exca- some perform it to required tions respondents. ants and trial, judgment vation in order to After in fa- remove the unstable soil was entered defendants, and replace dismissing plaintiff’s it with vor of the a more stable base. claims granting This work defendant Stevenson’s mainly performed August request declaring he had days previous signing to the formal back-charged in the properly sum Stevenson-Highland contract on or $3,497 work August about *3 required complete by plaintiff’s to reason of 9, On August and with consistent indus- jobsite comple- abandonment of before try practice, pre-construction conference obligations. tion of its contractual The by representatives attended of all court also awarded the defendant Steven- companies which work would on the son attorney’s fees. project. purpose The meeting of such Highland’s point appeal first on to coordinate their At the activities. con- finding that the that trial court erred in spokesman ference a from Shell stated that plans specifications and which pipes relocation its roadside would be preparation used in of its were not bid completed in about four days, rule applicable defective. The to this as not completed actually days until ten later. signment is any of error that if there Highland alleges that delay by this Shell competent support findings to evidence unreasonably progress interfered with of the and conclusions such find of Highland’s excavation. ings, rationally and conclusions based While Highland working on the exca- thereon, appeal. be will not disturbed vation, installing Stevenson was pipes some judgment of the court is The and constructing a concrete-lined ditch. At supported competent in this by evidence various times the work of the two compa- case. The record shows that nies interfered and caused to be president, Bergener, access to Bryan had And, delayed. on occasion Stevenson di- descriptions aspects detailed of all of the rected Highland’s equipment men and to project connected his earth perform work obligation which sole was the obligations, including the soil unstable con of Stevenson. ditions. A of the provision general contract 6, On October removed its incorporated by reference into equipment from the project and Stevenson Stevenson-Highland provid subcontract was forced complete to the excavation work part ed in that: at expense, his own he amount back- required The bidder is to care examine charged Highland. $83,- A total amount work, fully the of the proposed site 591.90 was by Highland received for the proposal, specifications, supplemen plans, performed, work it which amount included specifications, special provisions tal and $6,600 an additional for sub-excavation of submitting before a pro forms subgrade. unstable posal. Furthermore, re materials port, survey, plans soil profiles, and and July On Highland commenced test pertaining proposed data to the work against alleging defendants are inspection available for bidders at plans specifications provided Division, the Materials Test West 200 were defective and they failed to re- South, City, Utah, or Salt Lake the dis veal the existence of unstable road base. It trict office. The submission a bid shall further claimed that breach- be prima considered facie evidence that ed the sub-contract by causing it to be required bidder has made the exami work, delayed in its Shell had also nation and is satisfied as conditions to the unreasonably interfered with its work performing to be encountered work . . . progress. addition, In Highland sought re- imbursement from for the use of
Highland’s equipment, provision and for A in the Survey Soil Materials fees and costs. Report provided that: In of the contentions Project range Type Range:
Soil
A-(9)
very plastic
(In-site
from
weath-
that Stevenson and Shell caused
shale)
non-plastic
silty,
ered
unreasonably delayed, plaintiff present-
A-l-a
be
sandy gravel.
testimony
the form of
from
ed evidence in
Drainage:
pointed
Mr.
and also
to the Ste-
drainage
Bergener
Natural surface
var-
good
is con-
poor.
venson-Highland
ies from
accu-
contract wherein
Some water
mulates in
marshy
provision obligating
saturated zones
tained a
occur
irrigation
seeps
plain-
where
complete
water
certain work
advance of
irrigation
operation
delay
ditches and canals. The
not to
plaintiff’s
tiff’s
so as
main area in which saturation zones occur
for the de-
progress.
work
lies between
850 + 00
station
and station
pri-
consisted
fendants Stevenson
Shell
+910
Inspec-
marily
testimony from the
required
tor who was
be on the
There was
map
also a
of the
at-
*4
the
during working hours to observe
survey report
tached to the soil
which con-
He testified
progress of the construction.
tained a
regard
notation with
to
condi-
plaintiff’s operations were not unrea-
that
tions:
seeping
“Some
from canal to drain-
Mr.
sonably delayed by Stevenson or Shell.
ditch,
age
saturated
marsh and
areas.”
Stevenson,
project
was also
the
who
on
executed
subcontract on or
hours,
testified
during working
similarly
August
about
some two weeks
unreasonably delayed
plaintiff
that
was not
after it had begun
project
work on the
by the
of its earth
progress
had encountered the unstable
Fur-
soil.
activities of either Shell or Stevenson.
thermore,
there
was
adduced at
evidence,
conflicting
Based
the trial
on this
trial
that
Bergener
Mr.
examined the
court
for the defendants. This Court
found
during
site sometime
the first week
there
findings
will not disturb those
where
of June and
physical
observed the
condi-
competent
evidence to
them.
soil, including
tions of the
seepage from the
canal to a nearby drainage
Also
ditch.
argues
the trial
Highland next
that
on
observable
site
marsh
by failing
apply
court
to
the “total
erred
grass, alkali and surface water.
cost”
determine
amount
theory to
the dollar
evidence,
on the foregoing
Based
argument
This
is of
damage
of
suffered.
could
judge
properly
concluded that
that
no avail
the trial court found
because
potential
had notice of
difficulties
were not
defendants
liable
might
hinder its work
progress
reason, no fur
any damage.
For this
plans
that the
specifications
were not
of error
assignment
ther discussion of this
defective for
give
failure to
such notice.
necessary.
assign
second and third
Plaintiff’s
final
is that
Highland’s
contention
similarly
ments of error are
aimed toward
awarding
erred in
the trial court
Stevenson
finding
of fact.
court’s
any
award
failing
fees and in
attorney’s
alleges the
in finding
trial court erred
parties
At the
fees to
neither
Stevenson nor Shell Oil
stipulated that neither would then
subjected plaintiff
delays
to unreasonable
fees,
respect
attorney’s
evidence with
by reason
concurrent
their
activities
mat
by the
of that
that consideration
court
appears
construction site.
It
from the
the court’s
ter
until after
would be deferred
that Highland stipulated
record
that it was
in chief.
ruling on the merits
the case
entering
aware at
the time of
into
the issuance of a memorandum
Following
with
contract
that it
neces
which the trial court
sary that
decision in
work on the utilities and other
sched
hearing
a
items be
simultaneously
carried on
with
request
uled
consideration
his
moving operations
earth
held
hearing
was not
attorney’s
that such
could
ex
fees.
reasonably
activities
be
date,
par-
all
pected
operations
prior
to the scheduled
interfere with
because
1038
(1978);
So.2d 754
Flagala Corp. Hamm,
ties
v.
stipulated that
the hearing could be
Fla.App.,
(1974) (foreclosure
'
Highland
attorney’s
nied
pending
action
action and while this
the
pointless Highland
ed
then request-
below,
court
Stevenson admitted
opportunity
present
an
evidence as to
Highland
voluntarily paid
he owed and he
$10,300.78
what its fees would have been. After the
suing
amount it was
for.
ruling
trial court’s
on the merits in favor of
payment
In view of that
after the
parties
not
did
return to
started,
prevailing
Highland
was
party”
was “the
they
stipulate
since
were able to
as to
regard
to that cause of action. what
regard-
Stevenson’s evidence would be
It
generally
party
has been
held that a
ing
attorney’s
his
fees.
judgment
whose favor an affirmative
is
is
rendered,
judgment
or not
whether
The
affirmed,
below is
but the
initially sought
for less than
plaint,
in the com- case is remanded with directions for the
“prevailing party”
a
is
within
trial court to fix and
award
reasonable
attorney’s
meaning
awarding
of a statute
attorney’s fee in
Highland
in ac-
prevailing party,
fees to the
Peter Marich &
opinion.
cordance with this
No costs on
Associates,
Powell, Fla.App.,
appeal
Inc. v.
awarded.
pre-
was not
consequence is that the issue
SWAN,
K.
J.,
THORNLEY
OAKS,
now
appeal
cannot
served for
be heard to
concur.
Judge,
District
Retired
complain.3
him-
disqualified
STEWART, J., having
SWAN, Retired
self,
participate;
not
did
REHEARING
ON
Judge, sat.
District
HOWE, Justice:
denied, but
Rehearing is
The Petition for
arguments
MAUGHAN, J.,
heard
modified to
of the
opinion
Court
filed.
opinion
before
died
court,
upon
remand to
provide
opportunity
shall be afforded
and dis-
Justice, (concurring
HALL, Chief
is not
evidence that
present
senting).
fees either be-
legally
attorney’s
entitled to
$10,300.78
De-
paid Highland on
cause the
judgment of the
would affirm the
I
due,
past
or that
cember
was not
modification.
court without
for not
legal justification
“pre-
is a
that it
Highland’s contention
the commencement of
paying it before
to an
and thus entitled
vailing party,”
action.
fees,
presented
was not
award
any evidence
nor was
to the trial
OAKS, J.,
HALL,
J.,
THORNLEY
C.
Consequently,
thereof.1
offered
SWAN,
Judge, concur.
District
K.
Retired
raising
issue
precluded
STEWART, J.,
disqualified him-
having
appeal.2
first time on
for the
herein; SWAN,
self,
participate
does not
majority that it
of the
assertion
Judge, sat.
Retired District
any
not
did
hot fatal
MAUGHAN, J.,
arguments but
heard the
what would
court as to
to the trial
was filed.
opinion
died before the
All
ipse dixit.
fee is an
be a reasonable
the will-
than fatal is
renders it other
that
ingness
majority of
part
on the
of a
remand for the
defy precedent and
court to
op-
Highland a second
affording
purpose
assertion
prove its case. The
portunity to
*6
appeal.
presented by
begs
also
the issue
evi-
present
did
fail
only
Not
fee,
did not
it also
of a reasonable
dence
for the first
presented
theory,
advance
prevailing
that it was also
appeal,
time on
party.
MARTINEAU,
Lynn
Debra
Similarly, I am unable to subscribe to the
Appellant,
further assertion of the majority that
it
v.
pointless
request-
to have
ed an opportunity
further evi-
Mary
Elliot ANDERSON and
Christine
J.
dence as to fees after the court found in
Anderson,
Defendants
Stevenson. Had
theo-
Respondents.
ry, as now
appeal,
advanced on
been duly
presented
trial,
at
16923.
may
No.
very
well
just
have been
as enlightened as was
Supreme Court Utah.
this Court in discerning that there may be
more than one prevailing party
given
in a
Sept.
However,
lawsuit.
it matters not what the
ruling of the court might
been,
point
crucial
is that
the issue was not
presented and
upon.
The unavoidable
City
Corp.
Ensign Company,
v.
2. Park
Utah
may
not be awarded
fees
1.That
(1978); Edgar Wagner,
Utah,
given
stipulation