*1 attorney law, its fees Allstate award appeal.
costs on conclusion, trial court’s we affirm the
In trial issue
rulings. We remand damages, Allstate’s
court to determine attorney fees costs and of Allstate’s
consist defending Pennington’s
inсurred Hurst, P.2d Hunt v. 1990). of dam This assessment attorney, only against
ages run is to
Wilson. HOWE, Associate Chief
Chief Justice STEWART, DURHAM, Justice
Justice RUSSON concur Justice
Justice opinion.
ZIMMERMAN’S Stone,
Keith MacKAY State Plaintiffs,
Inc., Jackson,
Roy and Rex L. E. HARDY Appellants,
Defendants,
Cross-Appellees, Family Joseph Trust and Earl Earl, Earl, and Anne aka Carol J.
Carol trustees, joint
Jillyne Nunley, Defen- Cross-Appellants.
dants, Appellees, and 970251.
No.
Supreme Court of Utah.
Dec. *2 White, Thomas, Jr.,
Weston J. F.L. M. Christopherson, Kent George, appel- St. lants. Barker,
James L. City, ap- Salt Lake pellees.
RUSSON, Justice:
INTRODUCTION
Roy
Hardy
Defendants
E.
and Rex L.
appeal
for the second time in this
original
case. The
action included a cross-
by
claim J. Earl
Jones1
accounting
Jackson for an
winding up
partnership.
dissolved
The district court
judgment
favor,
entered
in Jones’s
and Har-
dy
appealed,
alia,
and Jackson
claiming, inter
that the court
in awarding
post-
erred
profits
dissolution
realized
ship оn Jones’s
share of
assets.
That
came before this
MacKay Hardy,
1. J. Earl Jillyne Jones died in Nunley 1998. The ol Anne Earl and were subse- Joseph Family Earl Jones quently parties. Trust and trustees Car- substituted as only post- cause it awarded him not those BACKGROUND profits to his dissolution attributable share of facts of this prior opinion sets out the Our assets but also those attributable pertinent We summarize case in detail. Hardy’s and Id. Jackson’s efforts. the issues necessary to understand facts raised on remand, the court heard testi- On *3 Hardy into and entered In Jones mony during and evidence received other agreement purpose the for partnership oral heаrings Hardy’s relating to and several Washington in developing land located post-dissolution contributions Jackson’s and In the County, Utah. June time, During this the court had services. problems. experiencing ship began financial pending separate before it lawsuits two that Hardy associated Consequently, Jones and against Hardy filed and had been Jackson fifty per- giving him a partner, a Jackson as relating development project. to their One exchange in the in cent interest (the by was filed T. suit Ellen Green “Green” fi- agreement arrange for additional his suit) involving by damages caused Hardy’s project. and nancing for the Jones’s ground problems of a settlement townhouse in respective interests purchased partnership. unit she had from twenty-five percent. reduced to Heritage by suit The other was filed Home (the suit) Furnishings “Heritage” involving a Jones/Hardy/Jackson partnership con- The whereby subscription agreement 27, 1988, stock with- until when Jones tinued June Thereafter, appliances purchase could and partnership.2 from the drew coverings at to run the floor a discount. Green and Hardy continued and Jackson settled, (the “Hardy/Jackson” Heritage eventually partnership), suits were and business development project. Hardy argued and on remand of Jackson which included Then, brought expenses with in December Jones case that associated that winding accounting apportion- for an and in cross-claim3 settlement should be considered Jones/Hardy/Jackson partnership up profits. ing partnership’s post-dissolution and 48- pursuant to sections 48-1-34 affairs remand, findings In its of fact on written 1-40 of the Utah Code. court the district determined Jones was trial, four-day the district After a bench responsible for costs or not Hardy and court entered suits, Heritage relating to the Green and $76,673.23, Jackson, jointly severally, and for neither Jones nor the repre- an amount which court concluded actions. The court also those partnership. interest sented Jones’s in post-dissolution the total determined Hardy judgment, In from that their contributions and services alleged court er- three district equaled Hardy and Jackson were entitled warranting affirmed reversal. We rors ($7,002.99 $1,352.11 $8,355.10 for and Jackson further part for but reversed remanded Hardy). The then reduced the proceedings, concluding that “the district $75,249.47 original judgment and calculat- by failing to court erred consider by judg- ed the interest awarded alleged post-dissolution capital con- Jackson’s $12,957.93. to be ment apportioning and services tributions appeal, In this second partnership’s post-dissolution profits.” Mac I, that the district court committed four claim Kay P.2d at 631. reasoned We cross-appealed, regard re on remand. in this errors district court’s failure first alleging be- four errors. We address improper also sulted windfall as a co-defendant in a "dissolution” 3. Jones filed crоss-claim 2. Jones's withdrawal effectuated partnership, brought defines as by which the Code and State an action Keith Stone, Inc., "The dissolution of suing they follows: Jones and work change partners caused the relation of the project prior performed on a to their association carry- ceasing partner to be associated Jackson. That was settled suit on, distinguished winding up, ing from the § 48-1-26 Code Ann. the business.” (1998). matter, Hardy/Jackson appeal years and then discuss after the defendant’s cross-appeal. testimony Jones’s presented exhibits and at trial. post-remand
Those have exhibits no credi- bility provide preponder- do STANDARD OF REVIEW proof necessary ance of show de- reviewing post-remand In the lower court’s are [sic] fendant’s entitled to credit for regarding Hardy’s decision and Jackson’s al post-dissolution allegedly per- services leged post-dissolution contributions ser post-remand formed them. These ex- vices, will this court review the lower court’s hibits are direct conflict defen- findings of fact under the erroneous accounting presented dants’ at trial ... standard and its conclusions of law undеr a prepared by defendants’ accountant which correctness standard. Drake v. Indus shows that at time of the [conclusion] *4 Comm’n, 1997). 177, 181 trial business the respect questions With to mixed of law and ship any money did owe the defen- fact, underlying we will review the facts un entity. dants or to other standard; der the deferential clear error added.) (Emphasis The court then listed the however, legal those effect of facts is post-dissolution expenditures sup- that were province appellate within the ported by competent concluded, evidence and аnd given “no deference need be a [lower] post-dissolution “The total capital contribu- court’s questions resolution such of law.” tions and services which defendants are Id. $7,002.99, entitled are: Jackson $1,352.11.” However, the court determined ANALYSIS “any that other claims of defendants for post-dissolution I.THE capital APPEAL contributions or ser- HARDY/JAGKSON supported by vices are not credible evidence.” A. The District Court’s Determination of added.) (Emphasis Hardy’s and Jackson’s Post-Dissolution findings The Services and court’s could not Contributions have clear, been more comprehend and we cannot argue Jackson and first how appellants’ attorneys can in assert their district in failing apply court erred brief that District “[t]he Court found the post-dissolution value of ap- their services in [Hardy’s value of and Jackson’s] services to portioning the division of partnership’s $320,028.34 failing and then in erred profits. Specifically, net they state that the apply reapportionment them in of Jones’ district found post- the value of their share.” If a lower court has erred in its $320,028.94. dissolution services to be How- fact, findings written proper procedure ever, the findings district court’s written is complaining challenge fact on remand reveal their assertion those findings on our clearly under hardly could be further from the truth. Drake, erroneous standard of See review. Addressing Hardy’s and Jackson’s credibil- 181; Bartell, 939 P.2d at In re Estate ity credibility and the of their evidence on (Utah 1989). P.2d Appellants, how remand, the district court stated its find- ever, challenged have not even the lower ings: court’s written factual findings on 2. The credibility lack defendants we cannot conclude that those claiming Jones-Hardy- now findings were erroneous. Further never existed. more, rеpresentation the above of counsel presented by 3. The exhibits the defen- warrants consideration of whether sanctions pursuant post-remand discovery dants disciplinary appropriate. action is See and/or 40(b) hearings prepared anticipation and R.App. (1998); Utah P. R. Prof. 3.3(a)(1).4 hearings, of those after the trial of Conduct 40(b) (b) Appellate 4. Rule of the Utah discipline attorneys Rules of Pro- Sanctions provides: parties. may, cedure The court after reasonable notice findings but review the court’s court’s factual Heritage Lawsuits B. The Green legal their effect for cor- as to determination argue that next Drake, P.2d at 181. rectness. receiving evidence in not court erred settling they incurred expenses Unfortunately, the real issue and support their Heritage To suits.5 Green parties. eluded both law have relevant have should those is whether the events dispositive issue contributions, they been considered Heritage lawsuits out of which the Green 48-1-15(1) Code, of the Utah rely on section or after arose occurred before re- partner shall be provides, “Each which Jones/Hardy/Jackson partnership was dis contributions, way whether paid his princi general partnership solved. Under prop- capital or advances “outgoing” partner withdrawing or ples, a towards the must contribute erty ... [and] partnership debts which arise not liable for otherwise, losses, sus- capital or whether after dissolution: according to his tained partnership by the of a On the dissolution They also cite section profits.” share partner, the retirement of a withdrawal or 48-1-15(2), “The provides, further rela- outgoing partner sustains no respect indemnify every partner must remaining continuing part- tion to the rea- personal liabilities payments made and whereby they exercise au- can ners ordinary sonably by him the incurred *5 him, thority binding in the absence of on business, or for the its proper conduct of estoppel. giving rise to circumstances property.” or its business preservation of Thus, liable for partner personally is not Heritage and argues that the Green Jones partnership is partnership debts where brought he withdrew from after suits debt, inception of dissolved before he nor the and that neither partnership notiсe of the dissolution at least where party to the named as a partnership was dealings parties have given to third who that he To action. partnership. any of the for be held accountable cannot (1987); § Partnership suits, 59A Am.Jur.2d Heritage and expenses of the Green Rowley, Rowley on Partner- 1 Reed see also I, the Utah section of relies on article Jones (2d 1960) (“A retiring 36.1, ship § at 650 ed. Constitution, person provides, “No which given notice of his has due life, partner who liberty property, or deprived of shall any obligations of not liable on retirement is сites to of law.” He also process due without retirement, after his 17(d) firm incurred Proce- the new Rules of Civil of the Utah no of the new firm have states, the members dure, separate property of since “The which obligation.”); may him to a new power to bind of the association an individual member 703(a), § 6 U.L.A. Partnership Act judgment unless the Uniform not be bound (“A (1994) liable partner is not the court dissociated and member is named incurred after obligation jurisdiction over the member.” acquires for a provided in dissociation, except as otherwise court’s determination The district (b).”). subsection any of the responsible for was not Jones expressly not Utah Code does The Her with the Green and expenses associated on future of dissolution the effect address question mixed of law itage suits is a however, liabilities;, provide that it does give therefore deference fact. We Rules of with the proceedings in accordance con- opportunity to show cause to the and an hearing, requested, trary, Discipline take the State Bar. upon if attorney per- against any 3.3(a)(1) appropriate action of Professional of the Utah Rules Rule rep- inadequate practices it who before for lawyer son not know- provides that a shall Conduct client, unbecoming a conduct resentation of fact ingly statement of material a false "[m]ake person Bar or a allowed member of the a tribunal.” or law to com- appear or for failure to before the Any ply of the court. rules or order these ap- suits for settled both and Jackson suspend a member of the or disbar action to $23,000 $12,000 proximately and incurred Ethics referred to the Utah State Bаr shall be attorney fees. Discipline of the State Bar Committee purposes allocating “[t]he dissolution of a does not Jones’s in- discharge existing liability itself terest. 48-1-33(1) §
partner.” Utah Ann. Code MacKay added). C. The Settlement logical (emphasis implication provision discharges this is that dissolution Hardy and next claim Jackson responsibilities outgoing partner’s failing district court properly erred future debts or liabilities incurred remain- post-dissolution capital allocate the contribu- ing partners who continue business in expenses tions and reasonable engaged prior which the among partners’ settlement interests.7 dissolution. again, Once ques- issue involves a mixed tion of law and fact. action, In the instant Jones withdrew from trial, MacKay, Hardy, Prior to the June 1988. The Green stipulated agreement settlement September suit was filed in and the partnership paid MacKay wherein the Heritage April suit was filed of 1995. $39,584.49 Thereafter, plus sum of interest. produced not Jackson have the district court allowed the cost remotely suggest evidence would even settlement to be considered as a Jones/Har- that these out оf the suits arose Jones/Har- dy/Jackson However, partnership expense. business, dy/Jackson partnership nor have partner Jackson was not a parties when the they alleged giving circumstances rise to an agreement. entered into the settlement estoppel whereby Jones should be held re- Therefore, Hardy argue, “we sponsible lawsuits, of these Jones/Hardy obligation have a paid by [the] years than which were filed more six after Jackson/Jones/Hardy partnership in violation Jones/Hardy/Jackson the dissolution of the agreement undisputed par- of all the partnership. The sections of the Utah Code they ties.” Accordingly, assert simply cite are *6 court should partner- have reduced Jones’s applicable because is no there evidence that ship regard by allocation in this twenty-five was their when partner Jones the out events percent. the arose lawsuits occurred. More- over, Hardy do argues Hardy not assert that Jones that and Jackson have apply should falsely the Uniform Partnership represented that there was a unani- Act of 1994 requirements agreemеnt or that the Act’s among parties mous the that have even been met.6 We Jones/Hardy obligation paid by therefore hold was the Jack- correctly the district court son/Jones/Hardy partnership. ruled that According to responsible should any Jones not be held limiting “[t]he issue payment the to expenses relating MacKay to those lawsuits. It nec- from the shares Jones and essarily follows that always by such could plaintiff not contested Jones.” Furthermore, 48-1-38(1) be considered as contributions for cites section 703(b) provides: 6. Section actually 7. The court did not mаke a determina- regarding proper tion on remand the allocation (b) partner A who dissociates without result- MacKay hearing of the settlement. The on re- ing winding up in a dissolution and of the parties mand indicates that all and the court partnership partner business is liable as a were somewhat as to confused whether the issue by the other in a transaction entered into fully had been addressed earlier. The court partnership, surviving partnership or a un- questioned appropriateness addressing years der part- [Article] within two after the counsel, issue and asked "If I [the deal with dissociation, only ner’s ing if at the time of enter- MacKay hearing, on the matter] now remand party: into the the other transaction you getting (1) apple?” aren’t bites at the two How- reasonably believed the dissociated ever, discussion, after a brief the court and the partner partner; was then a (2) parties moved on other matters without re- partner’s did not have of the notice dis- sociation; solving MacKay issue. Because we can dis- (3) pose by addressing of this issue knowledge is not deemed to have had the district determination, 303(e) prior under court’s Section notice under court’s failure to Section 704(c). resolve the issue on remand does not us concern 703(b) (1994). Partnership § Uniform appeal. Act on this Jackson, (7) proposition a motion the district Utah of the Code partner, staying order execution on became a new court entered when Jackson be- existing partnership judgment pending final resolution of creditors original judgment appeal. to Jackson. The court’s creditors their came judg- following paragraph: “The included law, part- a new Under carry provided by ment shall interest as existing partnership to an ner admitted §Ann. 15-1^4.” Utah Code partnership that the debts of the liable for Code to his prior admission. arose complain that the Jackson now states, partner into person “A admitted awarding post-judg- erred in district court existing for all partnership is liable statutory inter- ment interest Jones at the arising before obligations of the rate, money depos- est had been partner as if he had been his admission ited the court in a custodial interest- incurred, except obligations were when such account, and bearing the interest rate on that only liability shall out that his be satisfied statutory was less than the account interest , property.” Ann. Utah Code rate. 48-1-88(1) (1998); § § see also id. 48-1-14 however, decline, We address (“When into an any partner new is admitted argument. involves the dis This issue partnership ... if business is existing judgment. trict court’s liquidation without of the continued they should have raised this issue their first, affairs, or dis- ship creditors of the Issues that could have been first solved, partnership are creditors also appeal first not raised in the but were raised business.”). continuing so Enters., DeBry are waived. Seе v. Cascade Hardy and Jackson assert in their brief (Utah 1997) (failing to 935 P.2d raise subsequent entered the “Jackson ripe issues results waiver of being executed [the note] time); right them State to raise at later ex way agreement in no express that he was Rohan, v. 2d rel. Road Comm’n 28 Utah However, they have not for the note.” liable DeNiro, (1972); Smith support evidence in the record cited (1972). 259, 501 The rea Utah 2d P.2d 265 agreement exist- assertion that such an their economy simple: rule is son for this Judicial ed, they apparently provide did finality parties’ interests during such way parties judgments аre no furthered if proceedings In the ab- below. piecemeal appeals. engage are allowed to *7 any we agreement, sence of evidence of that Jackson was liable must conclude II. JONES’S CROSS-APPEAL by the expenses incurred settlement there- partnership before his We admission. presents four issues his that the not err allocat- fore hold court did However, to ad cross-appeal.8 we decline ing expense to that exist- the the arguments he of his has dress at the time Jones withdrew. ed utterly comply briefing failed to with our proce appellate requirements. Our rules of D. The District Award Post- Court’s of requirements forth dure set the Judgment to Jones Interest appellees when appellants' and must meet original submitting briefs before this court. See the court’s After easy R.App. and Jack P. The rules are to judgment in favor of Utah step-by-step approach offer deposited the understand and a with the court sum son appellate ($76,673.23), placed writing an This judgment the court to brief. which held in appeals, the court has interest-bearing account. Pursuant well as of fraud?”; (3) "Did the following cross- the defеndants for 8. Jones raises issues in his (1) granting appeal: plain- dismissing petition "Did the trial court err in court err in trial (defendants) Roy E. and Rex original L. here- entered tiff to correct in?”; post-dissolution for their credits claimed (4) prohibit- "Did trial court err in contributions?”; (2) "Did the trial discovery?” ing plaintiff pursuing from dismissing Earl Jones err in the claim of J. 948 Third, argument
numerous cases we will not address briefs fails to include adequately issues not “the briefed.9 Our rules contentions and of the appellant reasons “[bjriefs provide respect with presented, also which are issues includ- ing compliance may disregarded grounds reviewing for [with 24] rule issue not stricken, preserved sponte or in the trial court.” Utah R.App. on motion or sua 24(a)(9). 24(i). Moreover, P. R.App. support court.” it fails to Utah P. The Jones arguments some of comply every brief with citations to fails to with almost re- rele- quirement vant illustrate, R.App. authorities. P. forth in rule 24. To set 24(a)(9) (e). provide following & nonexhaustive ex- amples of its deficiencies. concise; Finally, the brief is not it is not presented accuracy; logically is not it First, fails to include in its brief state- arranged; it is not from free burden- (1) presented ment of thе issues for review some, irrelevant, and immaterial matters. appellate sup- standard review with 24(i). R.App. See Utah P. The first issue in (2) porting authority, and citation a brief, reply which constitutes the first showing preserved record that the issue was cross-appeal, in the illustrates the grounds trial court or a statement point. twenty-nine The brief contains num- seeking preserved review of an issue not paragraphs, bered some contain in the trial R.App. court. See Utah P. single Paragraph sentence. 13 contains sub- 24(a)(5). H, paragraphs through A paragraph while 14 Sеcond, correctly the brief fails to cite subparagraphs through contains A U. Sub- paginated pursuant record as paragraph sub-sub-paragraphs U contains 1 11(b) rule appellate proce- through of our rules of point, 10 one sub-sub-para- on dure,10 and graphs through Moreover, the statement of the facts in- 1 4 on another. cludes facts not relevant pre- to the issues the brief fails to make clear assertions or R.App. sented for review. engage See Utah P. analysis even modicum of 24(a)(7) (e).& merely quotes instead paraphrases inаdequate briefing 1087, 510, 783, App.3d 9. The cases of are discon- 48 Ill.Dec. 416 N.E.2d certingly (1981))); 1108, legion. provide following Phillips We Hatfield, cases 784 v. 904 P.2d example (Utah ("However, Ct.App.1995) small of what has come before this 1109 because we appeals: appellate court and the court of wholly Valcarce v. find Hatfield’s Fitz- brief fails to com 305, gerald, (Utah 1998) ("Paul ply 961 P.2d 313 Appellate 24 of with Rule the Utah Rules of Procedure, analysis Valcarce’s brief on inadequately presents contains little and it the issue consideration, point. legal on this There is no referencе to for our we decline to address his contention, authority argument.”); and no substantive Steele Board Re Comm'n, citation to the record.... Because of view inade Indus. 845 P.2d 961-62 (Utah quate analysis, Ct.App.1993) (striking we decline to address Paul Val- brief which did not 24(a)(7) appeal.”); comply requirements carce’s claim on Carrier v. Pro — Tech Co., Restoration, (9)); 1997) Koulis v. Standard Oil P.2d ("Pro-Tech (Utah Ct.App.1987) merely provides (refusing summary consider short brief that our (1994)] failed contain record citations [State v.] [889 decision in P.2d Menzies requirements did not conform to conclusory rule 24 and then ends with *8 state ment, brief). argument of section 'This case should be no different.' Pro- wholly present any argument Tech fails to con- cerning case....”); specific issue in this emphasize importance citing 10. We of to the Creech, First Sec. Bank Utah v. 858 P.2d paginated appeal, originally record as of not as (Utah 1993) (refusing to address contention paginated proceedings. in the lower court When in requirements brief that did conform to of multiple record contains volumes of tran- 24(a)(9)); Wareham, exhibits, orders, motions, rule State 772 P.2d scripts, judgments, and (Utah 1989) (declining documents, to address issue legal proper other impera- citation is wholly legal analysis it, where "brief lacks and au- parties tive. Without neither nor this thority argument”); ... efficiently State v. quickly Bish- can locate the refer- (Utah 1988) (" op, case, passages. '[A]review- enced In this the record con- ing court clearly thirty-two spanning is entitled to have issues years. tains volumes seven pertinent authority defined with cited and paginated according is not While the record entire simply depository 11(b) appealing party in procedure, which the our appellate rules of may dump argument the burden only and re proper Jones’s brief contains handful " (quoting Opsahl, search.' Williamson v. 92 Ill. record citations. argu- required out the “issues and to set leaving this court with was length, great at record cross-appeal. in He posi- Jones’s ments” contained attempting divine task issues as follows: has set out the tion. granting trial court err in 1. Did the increased brief has Jones’s (defen- L. Roy E. and Rex unduly- parties and litigation for both costs of dants) post- any credits for their claimed energy. judiciary’s time and burdened reply capital contributions? Stan- noted in their dissоlution Hardy and Jackson As brief, clearly failed to com the Jones brief erroneous. dard Review: rules, they re briefing ply with our dismissing in 2. the trial court err Did attorney fees expend additional quired to (plaintiff) claim of Earl J. briefing rules were fash responding. Our for fraud? Stan- the defendants litigation the costs of part to lower ioned clearly erroneous. dard of Review: economy by facilitating judicial maximize parties dismissing and this err in between 3. Did the trial court communication rules hin comply origi- with our petition plaintiff Failure to to correct the court. judicial proсess. be ders entered herein? Standard nal comply with our does not cause Jones’s brief clearly Review: erroneous.
rules, raised therein disregard the issues prohibiting 4. trial court err Did the 24(i) of Rules of to rale the Utah pursuant discovery? plaintiff pursuing Stan- from Appellate Procedure.11 of Review: erroneous. dard of the above Following the statement of each
CONCLUSION issues, argu- presented counsel has his Jones’ judgment is court’s amended The district support of resolution of those ment in his affirmed. issues. DURHAM, Justice Associate Chief Justice deficient some other While brief STEWART, ZIMMERMAN and Justice opin- majority regards pointed out as opinion. concur Justice RUSSON’s ion, adequate it is I believe that on balance cross-appeal on its to consider the for us HOWE, Justice, concurring and Chief merits. dissenting: except majority opinion I concur in the cross-appeal. I dis-
to its treatment leveled at of the criticism
agree with some (the cross-appel- appellee and brief
Jones’
lant). majority fault with example, the finds
For brief in that “the briefs
Jones’ and reasons include the ‘contentions
fails to respect appellant issues ” adequate. I find the brief to
presented.’ 24(f) Appel- Rules rale
Under Procedure, cross-appellant,
late dissent, respect with citations to his issues implies that reasons with Howe In Chief Justice record, impor- only comply cross-appellant authority etc. It is need and to the the brief оf *9 24(f) simply sepa- cross-appeal set forth the cross- is to remember that tant However, a arguments.” appellant’s "issues and raising for review. distinct issues rate "appellant” thus cross-appellant is still an Thus, on its cross-appeal be able to stand must 24(a). comply a cross- with rule must own, original appeal. This is independent of the required that his appellant likewise to show appeal may become irrel- so because preserved in the trial have been issues state the voluntary through dismissal. mootness evant appropriate of review with standard R.App. P. 37. See Utah authority, supporting to state the contentions