Utah Case Law
GLACIER LAND CO., v. CLAUDIA KLAWE & ASSOCIATES, 2006 UT App 516 Glacier Land Co., L.L.C., a Utah limited liability company; Glacier Land Development Co., L.L.C., a Utah limited liability company, Plaintiffs, Appellees, and Cross-appellants, v. Claudia Klawe & Associates, L.L.C., a Utah limited liability company; and Claudia Klawe, an individual, Defendants, Counterclaimants, Third-party Plaintiffs, Appellants, and Cross-appellees, v. Glacier Land Co., L.L.C., a Utah limited liability company; Glacier Land Development Co. L.L.C., a Utah limited liability company; David Gough, an individual; Daniel L. Vranes, an individual; and Brent R. Shaw, an individual, Counterdefendants and Third-party Defendants. Case No. 20050265-CA. Utah Court of Appeals. Filed December 29, 2006.
Appeal from the Third District, Salt Lake Department,
020907596 The Honorable William B. Bohling The Honorable
Bruce C. Lubeck.
Stephen P. Horvat and Thomas R. Karrenberg, Salt Lake City,
for Appellants.
Bruce R. Baird, Sandy, for Appellees.
Before Judges BENCH, GREENWOOD, and McHUGH.
OPINION
McHUGH, Judge:
1 Appellants Claudia Klawe and Claudia Klawe &
Associates, L.L.C. (collectively, Klawe) appeal the trial
court’s grant of partial summary judgment to Appellees
Glacier Land Company and Glacier Land Development Company
(collectively, Glacier). The court determined that a
marketing agreement between Klawe and Glacier contained an
indefinite term of duration and was therefore terminable at
will. Klawe also seeks review of two of the trial court’s
rulings regarding witness testimony. First, Klawe
challenges the trial court’s exclusion of Claudia Klawe’s
testimony concerning the assignment of the duties under the
exclusive marketing agreement. Second, Klawe asserts it was
error for the trial court to allow a rebuttal witness for
Glacier to testify when that witness was not listed in
pretrial disclosures. Finally, Glacier cross-appeals the
trial court’s denial of a motion for attorney fees.[fn1] We
affirm in part and reverse and remand in part.
BACKGROUND
2 Because this is an appeal from a grant of
summary judgment, we recite “the facts and all reasonable
inferences drawn therefrom in the light most favorable to
the nonmoving party.” Ryan v. Dan’s Food Stores, Inc., 972
P.2d 395, 399 (Utah 1998) (quotations and citation
omitted). This suit arises out of a disagreement over the
marketing and sale of high-end residential homes in the
Monte Luca development (Monte Luca), located on Danish Road
in Sandy, Utah. On August 4, 1999, Glacier entered into an
oral agreement with Claudia Klawe (Claudia), an associate
broker affiliated with Coldwell Banker Premier
(Coldwell),[fn2] regarding the exclusive right to market and
sell the homes built within the Monte Luca subdivision. At
the time of the agreement, the Monte Luca development plan
provided for the construction of forty units that would be
built to buyer specifications. However, construction had
not yet begun on any units.
3 Under the agreement, Claudia was granted the
exclusive right to act as the real-estate agent for the
development until all forty of the planned units were sold.
In exchange for that right, Claudia agreed to list and
promote the project, contribute twenty-five percent of the
marketing expenses, and accept a reduced commission on
sales. Between the time of the initial oral agreement and
the commencement of litigation, the parties memorialized
certain aspects of their agreement, including Claudia’s
right to act as exclusive agent until all units were sold,
in several different documents. One of those documents,
entitled Marketing Agreement, was executed on August 4,
1999, and stated:
[Claudia] shall be the exclusive real estate agent for
the aforementioned properties. Claudia . . . shall have
the autonomy to implement a successful marketing campaign
and to follow through with the listings, sales and
closings of all properties.
(Emphases added.) Similarly, another document entitled
Listing Agreement & Agency Disclosure form was executed on
October 17, 2001, and generally provided that Claudia would
be the exclusive listing agent for “40 stand alone
residences [at] Monte Luca” until the sell out date.[fn3]
4 In the fall of 2000, Glacier began construction
on Monte Luca and started to accept contracts for
individual units. Klawe began performing under the
agreement by initiating a marketing campaign which included
a website, printed materials, and listings for the
properties on the Wasatch Front Regional Listing Service
(MLS). Klawe also started to secure contracts for the sale
of the Monte Luca units.
5 In April 2001, Glacier expanded the Monte Luca
project by acquiring the Steed Property — an
adjoining parcel on Danish Road — that could
accommodate an additional two or three units. During the
transaction, Claudia acted as Glacier’s agent and earned a
$14,000 commission. Instead of collecting the commission,
however, Klawe credited the $14,000 to Glacier in exchange
for a modification of the oral Monte Luca exclusive
marketing agreement. The modification provided that the
additional two or three units planned on the Steed Property
would be included within the terms of the exclusive
marketing agreement. Glacier accepted the $14,000 and
agreed to the modification, expanding Klawe’s exclusive
right to act as real estate agent for forty-two[fn4]
planned units in the Monte Luca development — forty
from the development as originally planned plus two more
units to be built on the Steed Property. On April 23, 2001,
the parties memorialized aspects of the oral modification
by executing an Addendum to the Real Estate Listing
Agreement. And later, on January 7, 2002, the parties
executed two additional Listing Agreement & Agency
Disclosure forms that generally indicated that they covered
“42 stand alone residences [at] Monte Luca,” and would be
in effect until the “sell out date.”
6 In June 2002, the relationship between the
parties began to deteriorate when David Gough, a Glacier
principal, decided to purchase one of the forty-two units
in Monte Luca covered by the exclusive marketing agreement.
In the transaction, Gough challenged Klawe’s right to
receive a commission on the sale. When Claudia attempted to
discuss the commission with Gough, he became threatening
and verbally abusive. After the altercation, Klawe
temporarily assigned Claudia’s duties under the exclusive
marketing agreement to another agent and sent a letter to
Glacier stating that the reason for the reassignment was
“unethical and improper business conduct” on the part of
Glacier. On July 15, 2002, Glacier attempted to terminate
its relationship with Klawe, citing poor sales performance
as the reason for termination. Shortly after the attempted
termination, on August 9, 2002, Glacier brought suit
against Klawe seeking a temporary restraining order to
compel Klawe to release control over the Monte Luca
listings on the MLS.[fn5] Klawe counterclaimed against
Glacier and alleged causes of action for breach of
contract, unjust enrichment, and fraudulent
misrepresentation.
7 Glacier sought partial summary judgment with
respect to Klawe’s breach of contract claim. For purposes
of that motion, Glacier stipulated to the fact that the
parties had entered into the exclusive marketing agreement
and that the agreed duration of the contract was until all
forty-two of the Monte Luca units were sold. Glacier then
argued that even assuming those facts, Klawe was not
entitled to relief as a matter of law because the contract
was for an indefinite duration and, therefore, terminable
at will by either party. Klawe countered that the duration
of the contract was definite because, although no calendar
date or temporal term had been adopted, the parties had
nonetheless agreed that the contract would terminate upon
the happening of a defined event — the sale of all
the Monte Luca units. The trial court agreed with Glacier,
finding that, as a matter of fundamental contract
principles, the parties’ contract “lack[ed] definiteness,
lack[ed] a period of duration that is certain and as a
result can only be argued as, can only be determined as
being at-will.” Thus, the court granted Glacier partial
summary judgment on Klawe’s breach of contract claim.
8 Klawe’s unjust enrichment and fraud-based claims
proceeded to trial. At trial, Klawe attempted to introduce
Claudia’s testimony relating to the altercation between
herself and Gough that led to the assignment of her duties
under the exclusive marketing agreement. The trial court
excluded the testimony under rule 403 of the Utah Rules of
Evidence, finding that the evidence was not particularly
probative of the issues raised by Klawe’s unjust enrichment
and fraud claims and had “a tremendous potential for being
prejudicial.”
9 However, Claudia was allowed to testify as to
her reliance on the exclusive marketing agreement including
the until-sold provision. During cross-examination,
Glacier’s counsel asked Claudia if, for the period of time
she was at Coldwell, she believed that Coldwell would have
accepted a listing agreement specifying a duration of until
sold. Claudia answered in the affirmative indicating that
she did believe Coldwell would have accepted such a
listing. Following Claudia’s testimony, Glacier called
Dennis Marchant, managing broker for Coldwell, to testify
that Coldwell would not have accepted an until-sold listing
agreement. However, Marchant had not been designated in
Glacier’s pretrial disclosures under rule 26 of the Utah
Rules of Civil Procedure. Klawe moved to exclude Marchant’s
testimony under rule 37(f) of the Utah Rules of Civil
Procedure on the ground that he had not been previously
disclosed. Glacier argued that Marchant’s testimony was
being offered merely to impeach Claudia’s testimony that
she believed that Coldwell would have accepted an
until-sold listing agreement; and therefore, Glacier was
not required to designate Marchant in its pretrial
disclosures. Klawe disagreed, contending that because
Claudia had only testified as to her belief, she could not
be impeached by Marchant’s proposed testimony. Therefore,
Klawe characterized Marchant as a rebuttal witness, not
solely for impeachment, that must be listed in the pretrial
disclosures. Ultimately, the trial court denied Klawe’s
motion to exclude Marchant’s testimony. The trial court
determined that even if Klawe was correct in characterizing
Marchant’s testimony as rebuttal testimony, not solely for
impeachment purposes, that “it just goes without saying
that rebuttal witnesses do not have to be disclosed in
initial disclosures.”
10 Eventually, the case was submitted to the jury
which returned its verdict on February 7, 2005. Klawe was
awarded $17,000 in damages representing commission on the
sale of a single Monte Luca unit that had been placed under
contract in the summer of 2002. The jury otherwise denied
all other claims by both parties. On February 15, 2005,
Glacier filed a motion for judgment notwithstanding the
verdict under rule 50 of the Utah Rules of Civil Procedure,
arguing that the award of $17,000 to Klawe was not
supported by the record. The trial court entered final
judgment on February 23, 2005. The parties objected to the
form of the judgment, and the trial court entered an
amended final judgment on March 11, 2005. The amended final
judgment included the trial court’s denial of Glacier’s
motion for judgment notwithstanding the verdict. Neither
party moved for attorney fees prior to the entry of the
final judgment or the amended final judgment and no
attorney fees were awarded in either judgment. Klawe filed
a notice of appeal on March 16, 2005. On March 30, 2005,
two weeks after Klawe’s notice of appeal, Glacier filed a
motion seeking an award of attorney fees. The trial court
initially granted the motion but later, after complete
briefing, reversed itself, ultimately denying Glacier an
award of attorney fees upon finding that the motion had
been untimely filed because it was made after the entry of
final judgment and Klawe’s notice of appeal. Both Klawe and
Glacier appealed.
ISSUES AND STANDARDS OF REVIEW
11 First, Klawe challenges the trial court’s grant
of partial summary judgment with respect to its claim for
breach of the exclusive marketing agreement. “Summary
judgment must be supported by evidence, admissions, and
inferences which when viewed in the light most favorable to
the losing side establish that `there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law.'” Rose v. Allied Dev.
Co., 719 P.2d 83, 84 (Utah 1986) (quoting Utah R. Civ. P.
56(c)). Thus, when “deciding whether the trial court
correctly granted [summary] judgment as a matter of law, we
give no deference to the trial court’s view of the law; we
review it for correctness.” Uintah Basin Med. Ctr. v.
Hardy, 2002 UT 92, § 7, 54 P.3d 1165 (alteration in
original) (quotations and citations omitted).
12 Second, Klawe seeks review of the trial court’s
exclusion of Claudia’s testimony regarding the altercation
between herself and Gough on the ground that the evidence
was unduly prejudicial under rule 403 of the Utah Rules of
Evidence. Generally, a trial court is given broad
discretion to admit or exclude evidence under rule 403. See
State v. Pena, 869 P.2d 932, 938 (Utah 1994). Thus, “[w]e
review a trial court’s decision to admit or exclude
evidence under [r]ule 403 . . . under an abuse of
discretion standard, and will not overturn a lower court’s
determination of admissibility unless it is `beyond the
limits of reasonability.'” Diversified Holdings, L.L.C. v.
Turner, 2002 UT 129, § 6, 63 P.3d 686 (quoting State
v. 633 E. 640 N., 942 P.2d 925, 930 (Utah 1997)).
Additionally, “[e]ven if the evidence was erroneously
admitted, that fact alone is insufficient to set aside a
verdict unless it has had a substantial influence in
bringing about the verdict.” State v. Bluff, 2002 UT 66,
§ 47, 52 P.3d 1210 (quotations and citation
omitted); see also Utah R. Evid. 103(a) (providing that an
erroneous ruling requires reversal only if “a substantial
right of the party is affected”).
13 Third, Klawe asserts that the trial court
committed error when it allowed Marchant to testify as to
whether Coldwell would have accepted an until-sold listing
agreement because Marchant was a rebuttal witness, not
solely for impeachment, and was therefore required to be
listed in Glacier’s pretrial disclosures. We review a trial
court’s decision to deny a motion for discovery sanctions
under a bifurcated standard. See Stevenett v. Wal-Mart
Stores, Inc., 1999 UT App 80, § 8, 977 P.2d 508.
First, to the extent the issue on appeal required the trial
court “to interpret rules of civil procedure, it `presents
a question of law which we review for correctness.'” Harris
v. IES Assocs., Inc., 2003 UT App 112, § 25, 69 P.3d
297 (quoting Nunley v. Westates Casing Servs., Inc., 1999
UT 100, § 42, 989 P.2d 1077). Second, we review a
trial court’s refusal to impose sanctions, such as a
failure to exclude evidence under rule 37 of the Utah Rules
of Civil Procedure, for “‘an abuse of discretion.'”[fn6]
Id. (quoting Featherstone v. Schaerrer, 2001 UT 86,
§ 31, 34 P.3d 194). However, even where the trial
court committed error, we will reverse the trial court’s
ruling only if the erroneous decision regarding the
admissibility of evidence is harmful. See Utah R. Civ. P.
61 (“No error in . . . the admission or the exclusion of
evidence . . . is ground for granting a new trial or
otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with
substantial justice.”). More specifically, we will only
reverse the trial court “if absent the error there is a
reasonable likelihood of an outcome more favorable to the
[complaining party].” State v. Lindgren, 910 P.2d 1268, 1271
(Utah Ct. App. 1996) (quotations and citation omitted).
14 Finally, Glacier cross-appeals the trial
court’s denial of attorney fees for failure to timely file.
“A trial court’s conclusion that a request for attorney
fees is waived if not made at trial is a legal conclusion.
We review a trial court’s conclusions of law for
correctness, granting no deference to the trial judge’s
legal determinations.” Meadowbrook, L.L.C. v. Flower, 959
P.2d 115, 116 (Utah 1998).
ANALYSIS
I. Summary Judgment
15 Klawe asserts that the trial court erred when
it granted Glacier’s motion for partial summary judgment
and dismissed Klawe’s contract claims arising out of the
exclusive marketing agreement. Klawe argues that it was
erroneous for the trial court to summarily enter judgment
against it on its breach of contract claim on the ground
that the agreement was terminable at will by either
party.[fn7] We agree.
A. Utah’s At-Will Presumption
16 “Utah’s employment law presumes that all
employment relationships entered into for an indefinite
period of time are at-will, where the employer or the
employee may terminate the employment for any reason (or no
reason) except where prohibited by law.” Hansen v. America
Online, Inc., 2004 UT 62, § 17, 96 P.3d 950; see
also Rackley v. Fairview Care Ctrs. Inc., 2001 UT 32,
§ 12, 23 P.3d 1022 (“Under Utah law, an employment
relationship entered into for an indefinite period of time
is presumed to be at-will and gives rise to a contractual
arrangement where the employer or the employee may
terminate the employment for any reason, except as provided
by law.”). Glacier restates the at-will presumption as a
rule of contract construction and argues that, under Utah
law, any employment contract is at-will, terminable at any
time by either party unless the parties agree to a definite
term of duration. Additionally, Glacier urges a narrow
interpretation of definite duration that includes only
those employment contracts that specify a calendar date for
termination, a specific length of time for performance, or
a terminating event that is certain to occur.
17 Thus, Glacier argues that because the exclusive
marketing agreement provides that the duration is until all
forty-two of the Monte Luca units are sold, without
providing a calendar date for expiration or a measurement
of time for performance, it was terminable at the will of
either party. Klawe has implicitly accepted Glacier’s
framing of the at-will rule and has primarily argued for a
broader interpretation of definite duration that would
include the “until sold” term of the exclusive marketing
agreement, thus, placing it outside the at-will rule. We
recognize that some other states have adopted an at-will
rule similar to the interpretation proposed by
Glacier.[fn8] See, e.g., Schultz v. Hill, 2002-0835, pp.
5-6 (La.App. 1 Cir. 2/14/03), 840 So. 2d 641 (interpreting
statute under which “a contract of employment for an
indefinite duration may be terminated at the will of either
party” (quotations and citation omitted)); Taliento v.
Portland W. Neighborhood Planning Council, 1997 ME 194,
§ 9, 705 A.2d 696 (applying at-will rule); Aaland v.
Lake Region Grain Coop., 511 N.W.2d 244, 246 (N.D. 1994)
(same). However, Utah “has joined the national trend” by
converting the common-law at-will rule into an evidentiary
rebuttable presumption rather than a rule of contract
construction. Retherford v. AT & T Commc’ns, 844 P.2d 949,
958 (Utah 1992).
18 Under Utah law, an employment relationship
entered into for an indefinite time creates a rebuttable
presumption that the employment may be terminated at the
will of either the employee or the employer. See Rackley,
2001 UT 32 at § 12; see also Uintah Basin Med. Ctr.
v. Hardy, 2002 UT 92, § 21, 54 P.3d 1165 (“[C]ourts
in Utah . . . adopted the at-will employment rule, under
which employment contracts that did not specify a duration
were generally presumed to be terminable at will.”). This
rule “is not, however, a rule of contract construction; it
is only a presumption that an employment relationship which
has no specified term of duration is an at-will
relationship, but that presumption is subject to a number
of limitations.” Fox v. MCI Commc’ns Corp., 931 P.2d 857,
859 (Utah 1997) (quotations and citations omitted); accord
Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 400 (Utah
1998) (“However, the at-will presumption is only that
— a presumption.”). The at-will presumption may be
rebutted if the employee can show that:
(1) there is an implied or express agreement that the
employment may be terminated only for cause or upon
satisfaction of another agreed-upon condition; (2) a
statute or regulation restricts the right of an employer
to terminate an employee under certain conditions; or (3)
the termination of employment constitutes a violation of a
clear and substantial policy.
Rackley, 2001 UT 32 at § 13 (quotations and citations
omitted); accord Burton v. Exam Ctr. Indus. & Gen. Med.
Clinic, Inc., 2000 UT 18, § 6, 994 P.2d 1261; Ryan,
972 P.2d at 400; Fox, 931 P.2d at 859. Thus, under Utah
law, an employment contract may be enforced, even to the
extent of an indefinite duration, if one of the exceptions
is present rebutting the at-will presumption. See Uintah
Basin Med. Ctr., 2002 UT 92 at § 22 (holding that
physician’s employment contract, terminable only for cause,
was enforceable despite indefinite duration).
19 We now apply this rebuttable presumption to the
facts of the present case viewed in a light most favorable
to Klawe. First, we recognize that the exclusive marketing
agreement does not specify a duration in the form of
expiration on a specific calendar date, nor does it specify
expiration after the passage of a defined period of time or
upon an event certain to happen. Therefore, assuming,
without deciding, that Glacier is correct in characterizing
this as a term of indefinite duration, we begin with the
presumption that the agreement was terminable at-will. See
id. (“[U]nder Utah law we initially presume it is of
indefinite duration but terminable at will.”). This,
however, does not end the inquiry. Next, we must “consider
whether any of the exceptions to the at-will rule applies.”
Id. Here, the parties expressly agreed[fn9] that the
employment relationship would terminate “upon [the]
satisfaction of [an] agreed-upon condition.” Rackley, 2001
UT 32 at § 13 (quotations and citations omitted);
accord Burton, 2000 UT 18 at § 6; Fox, 931 P.2d at
859. Specifically, the contract would terminate upon the
sale of the last of the forty-two units in the Monte Luca
development. This expressly agreed-upon condition, if
enforceable, is enough to rebut the presumption that the
employment was terminable at will. See Berube v. Fashion
Ctr., Ltd., 771 P.2d 1033, 1044 (Utah 1989) (plurality
opinion) (“[A]n employee may remove his contract from the
at-will category . . . by showing an express agreement to a
term of employment. . . .”).
B. Meeting of the Minds
20 Implicit in this analysis is an inquiry into
whether the agreed-upon condition is definite enough to
allow the court to enforce the terms of the condition. This
question is distinct from the issue of whether the duration
is definite and instead involves principles of contract
construction asking whether the parties had a meeting of
the minds on the agreed-upon condition.[fn10] See Nielson
v. Gold’s Gym, 2003 UT 37, § 11, 78 P.3d 600 (“‘[A]
meeting of the minds on the integral features of an
agreement is essential to the formation of a contract. An
agreement cannot be enforced if its terms are indefinite.'”
(quoting Richard Barton Enters. v. Tsern, 928 P.2d 368, 373
(Utah 1996))); Valcarce v. Bitters, 12 Utah 2d 61, 362 P.2d
427, 428 (1961) (“A condition precedent to the enforcement
of any contract is that there be a meeting of the minds of
the parties, which must be spelled out, either expressly or
impliedly, with sufficient definiteness to be enforced.”).
21 Glacier stipulated for the purposes of summary
judgment that the parties had agreed to the until-sold
term. Nonetheless, Glacier argues that the agreed-upon
condition is unenforceable, as a matter of law, because the
terms of the condition are too indefinite to establish that
the parties had a meeting of the minds. First, Glacier
contends that it would not have been reasonable for it to
have entered into a contract that granted Klawe a perpetual
right to sell all the units in Monte Luca. And second,
Glacier submits that the agreed-upon condition was
indefinite and unenforceable because it would be impossible
to determine when the last of the forty-two Monte Luca
units would be sold.[fn11] Nonetheless, when we view all
the facts and inferences in a light most favorable to
Klawe, as we must, it can be inferred that, at the time of
contracting, the parties reached an express agreement under
which Klawe had the right to act as the exclusive real
estate agent until all forty-two Monte Luca units were
sold.[fn12] In Utah, “[t]he law enables parties to freely
contract, establishing terms and allocating risks between
them. The law even permits parties to enter into
unreasonable contracts or contracts leading to a hardship
on one party.” Ryan, 972 P.2d at 402 (citation omitted).
And, “parties to an employment contract may prove in court
any express terms of that contract so as to accomplish the
agreement’s intended purpose.” Berube, 771 P.2d at 1044.
Indeed, Utah courts have enforced perpetual employment
contracts terminable only for good cause despite the fact
that, at the time of contracting, the parties could not
predict if circumstances demonstrating good cause for
termination would ever arise. See, e.g., Uintah Basin Med.
Ctr., 2002 UT 92 at § 20 n. 7 (“[T]he law in Utah
and numerous other jurisdictions recognizes the right of
parties to enter into indefinite length contracts
terminable for cause.”).
22 Like an agreed-upon just-cause condition, we
cannot say that the terms of the until-sold condition were
too indefinite to support a meeting of the minds merely
because the parties could not predict when the last of the
forty-two units would sell. Similarly, we cannot hold that
the agreed-upon condition is too indefinite merely because
enforcement of the express terms would result in a hardship
on Glacier. Under the facts and circumstances present at
the time of the agreement, Monte Luca had a defined
development plan known to both parties that anticipated
forty units. The parties were free to agree that the
exclusive agency would terminate upon the sale of all forty
of those units. Later, when the parties anticipated the
addition of two or three units, they could amend any
existing agreement to include those units within the
exclusive agency. If the agreement was made, the condition
was “set forth with sufficient definiteness that it c[ould]
be performed.” Ferris v. Jennings, 595 P.2d 857, 859 (Utah
1979) (quotations and citations omitted). We therefore
reverse the trial court’s grant of summary judgment and
remand for additional proceedings consistent with this
opinion.[fn13]
II. Evidentiary Issues
A. Altercation Between Claudia and Gough
23 Klawe also asks this court to review the trial
court’s exclusion, under rule 403 of the Utah Rules of
Evidence, of Claudia’s testimony regarding the altercation
she had with Gough when he contested Klawe’s right to
receive a commission on the unit Gough purchased in Monte
Luca. Klawe does not, however, assert that exclusion of the
evidence was in error. Klawe concedes that testimony
regarding the altercation was properly excluded as it
pertained to the unjust enrichment and fraud claims before
the jury. Instead, Klawe asks this court to rule that
Claudia must be permitted to testify on the subject of her
altercation with Gough during the trial after remand of
Klawe’s breach of contract claim. Klawe reasons that
Glacier is likely to assert that Klawe was the first to
breach the exclusive marketing agreement when it assigned
Claudia’s duties to another agent. Klawe asserts that
testimony regarding the altercation between Claudia and
Gough will be highly probative of the reasons underlying
the assignment. Klawe contends that, when the evidence is
viewed in the context of the breach of contract claim
instead of the unjust enrichment claim, the testimony
regarding the altercation cannot be substantially
outweighed by the prejudicial value of the evidence as a
matter of law. Therefore, Klawe urges this court to remove
the evidentiary decision-making from the trial court and to
direct that Claudia be allowed to testify on the subject of
the altercation on remand. This we will not do.
24 “‘[A] trial court has broad discretion to
determine whether proffered evidence is relevant'” under
rule 401 of the Utah Rules of Evidence. State v. Hobbs,
2003 UT App 27, §§ 11, 26, 64 P.3d 1218
(alteration in original) (quoting State v. Kohl, 2000 UT 35,
§ 17, 999 P.2d 7). Similarly, the trial court is
granted broad discretion when weighing the probative value
of evidence against the reasons for exclusion enumerated in
rule 403. See State v. Bluff, 2002 UT 66, § 56, 52
P.3d 1210 (“[A] trial court’s ruling under rule 403 is also
reviewed for abuse of discretion.”); State v. Pena, 869
P.2d 932, 937-38 (Utah 1994) (noting that “a spectrum of
discretion” exists and “toward the broad end of the
spectrum is the decision to admit or exclude evidence under
Utah Rule of Evidence 403”). Furthermore, the trial court is
in the best position to make evidentiary rulings as they
arise because it can review, among other things, the claims
and the evidence already admitted or proffered. See
Whitehead v. American Motors Sales Corp., 801 P.2d 920, 923
(Utah 1990) (noting the “trial court’s advantageous
position” in “reviewing questions of admissibility of
evidence at trial”); Shipp v. General Motors Corp., 750 F.2d
418, 427 (5th Cir. 1985) (noting that evidentiary
determinations under the identically worded rule 403 of the
Federal Rules of Evidence “are often inextricably bound
with the facts of a particular case”).
25 Although we acknowledge the likely relevance of
Gough’s alleged threatening behavior to the breach of
contract claim and Glacier’s relevant defenses, we
nonetheless stop short of usurping the trial court’s
primary responsibility to make the rule 403 determination
on remand. See Bullock v. Ungricht, 538 P.2d 190, 192 (Utah
1975) (noting that rulings on evidence are “primarily the
responsibility of the trial judge”). The admissibility of
relevant evidence is not without limit. See id. Rule 403,
for example, “permits the exclusion of otherwise relevant
evidence `if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.'” Hobbs, 2003 UT App 27 at § 27
(quoting Utah R. Evid. 403). If, on remand, Glacier objects
to the admission of Claudia’s testimony regarding her
altercation with Gough, the trial court is uniquely
situated to reweigh the probative value of the proffered
evidence against its potential for unfair prejudice in the
context of the claims and defenses at issue.
B. Pretrial Disclosures
26 Klawe argues that the trial court erred when it
announced that “it just goes without saying that rebuttal
witnesses do not have to be disclosed in initial
disclosures,” and allowed Marchant to testify that Coldwell
would not have accepted an until-sold listing. Klawe argues
that because Marchant was not disclosed as a witness in
Glacier’s pretrial disclosures as required by rule 26(a)(4)
of the Utah Rules of Civil Procedure, Marchant should have
been barred from testifying under rule 37(f). See Utah R.
Civ. P. 26(a)(4), 37(f). Glacier responds that Marchant’s
testimony was offered solely for the purpose of impeaching
Claudia and that sanctions are inapplicable because
Marchant’s testimony was properly allowed under the “solely
for impeachment” exception to the disclosure requirements.
See id. 26(a)(4). Klawe claims that it would have been
impossible to “impeach” Claudia’s testimony that she
believed that Coldwell would have accepted an until-sold
listing[fn14] with testimony from Marchant that he believed
otherwise. Additionally, Klawe maintains that Marchant’s
testimony addressed an area of substantive import to the
remaining unjust enrichment and fraud claims because the
testimony suggested that Klawe’s reliance on the until-sold
agreement was not reasonable.
27 Rule 26 of the Utah Rules of Civil Procedure
requires litigants to make certain pretrial disclosures.
See Utah R. Civ. P. 26(a)(4). Specifically, rule 26
mandates that parties provide each other with “the name[,]
. . . address[,] and telephone number of each witness,
separately identifying witnesses the party expects to
present and witnesses the party may call if the need
arises.” Id. 26(a)(4)(A). Additionally, parties are charged
with a duty to supplement pretrial disclosures “if the
party learns that in some material respect the information
disclosed is incomplete or incorrect and if the additional
or corrective information has not otherwise been made known
to the other parties.”[fn15] Id. 26(e)(1). However, the
rule is not absolute. A party need not identify a witness
in its pretrial disclosures if the witness is offered
“solely for impeachment.” Id. 26(a)(4). Glacier argues that
it had no duty to disclose Marchant as a witness because
Marchant’s testimony was used solely for the purpose of
impeaching Claudia.
28 The scope of the “solely for impeachment”
exception to rule 26 disclosures under the Utah Rules of
Civil Procedure is a question of first impression for Utah
courts. We begin by noting that there is a strong policy
underlying the modern rules of civil procedure that the
“instruments of discovery . . . together with pretrial
procedures make a trial less a game of blindman’s bluff and
more a fair contest with the basic issues and facts
disclosed to the fullest practicable extent.” United States
v. Procter & Gamble Co., 356 U.S. 677, 682 (1958); see also
Roundy v. Staley, 1999 UT App 229, § 11, 984 P.2d
404 (plurality opinion) (“[T]he purpose of Utah’s discovery
rules [is to] facilitat[e] fair trials with full disclosure
of all relevant testimony and evidence.”).
29 Rule 26(a)(4) states: “A party shall provide to
other parties the following information regarding the
evidence that it may present at trial other than solely for
impeachment.” Utah R. Civ. P. 26(a)(4) (emphasis added).
Impeachment of a witness is defined as the act of
“discredit[ing] the veracity of a witness.” Black’s Law
Dictionary 768 (8th ed. 1999) (parentheses omitted).
Similarly, “impeachment evidence” is defined as “[e]vidence
used to undermine a witness’s credibility.” Id. at 597.
Thus, by the rule’s plain meaning, witnesses need not be
disclosed if the sole purpose of their testimony is to call
into question the “veracity” or “credibility” of another
witness.
30 The text of rule 26(a)(3) of the Federal Rules
of Civil Procedure governing pretrial disclosures is nearly
identical to that of rule 26(a)(4) of the Utah Rules of
Civil Procedure. Compare Fed.R.Civ.P. 26(a)(3), with Utah
R. Civ. P. 26(a)(4). Because “[i]nterpretations of the
Federal Rules of Civil Procedure are persuasive where the
Utah Rules of Civil Procedure are `substantially similar’
to the federal rules,” Tucker v. State Farm Mut. Auto. Ins.
Co., 2002 UT 54, § 7 n. 2, 53 P.3d 947 (citation
omitted), we next survey the federal treatment of the
phrase “solely for impeachment” within the context of rule
26(a)(3) of the federal rules. The advisory committee’s
notes to the 1993 amendments to the Federal Rules of Civil
Procedure explain that “[b]y its terms, rule 26(a)(3) does
not require disclosure of evidence to be used solely for
impeachment purposes.” Fed.R.Civ.P. 26 advisory committee’s
note to the 1993 amendments. However, the advisory
committee’s notes also explain that rule 26(a)(3)(A)
“requires the parties to designate the persons whose
testimony they may present as substantive evidence at
trial.” Id. (emphasis added). Thus, the advisory committee’s
notes raise the inference that there is a distinction
between evidence that is “solely for impeachment” which
need not be disclosed, and evidence that has a
“substantive” value which must be disclosed. See id.
31 Federal circuit courts of appeal have split
over the meaning of rule 26’s solely for impeachment
exception. Some circuits have applied a narrow
interpretation of the phrase solely for impeachment, holding
that evidence having both an impeachment purpose and a
substantive purpose “is not offered `solely for
impeachment,’ [and] it is not covered by the exception to
the [r]ule 26 discovery requirements.” Klonoski v. Mahlab,
156 F.3d 255, 270 (1st Cir. 1998) (“The excerpts from the
letters written by Mrs. Klonoski to her sister were at least
in part substantive, and therefore they did not fall within
the `solely for impeachement’ exception. . . .”); see also
Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517-18
(5th Cir. 1993) (“Because the tape is, at the very least in
part substantive, it should have been disclosed prior to
trial, regardless of its impeachment value.”). Under that
interpretation, a witness’s testimony is offered solely for
impeachment if its only purpose is to “discredit a
witness[, or] to reduce the effectiveness of her testimony
by bringing forth evidence which explains why the jury
should not put faith in [his] or her testimony.” Chiasson,
988 F.2d at 517 (quotations, citation, alteration, and
omission omitted). Alternatively, some circuits have
rejected the impeachment versus substantive evidence
dichotomy and have instead relied more heavily on the
subjective intentions of the party in offering the
evidence. See DeBiasio v. Illinois Cent. R.R., 52 F.3d 678,
686 (7th Cir. 1995) (determining that witness’s testimony
having both impeachment and substantive characteristics was
solely for impeachment because the defendant’s primary
purpose in offering the testimony was for impeachment and
not to prove or disprove an element of the plaintiff’s
claim); Jeffries v. Pacific Indem. Co., No. 97-1398, 1997
U.S. App LEXIS 35513 at *6-7 (4th Cir. Dec. 17, 1997)
(unpublished) (per curiam) (finding exhibits were solely
for impeachment because they were offered to contradict
plaintiff’s testimony that she owned property, even where
exhibits had substantive value because ownership of the
property was one of the elements of plaintiff’s claim).
32 Utah has not yet decided whether the “solely
for impeachment” language of rule 26 means that evidence
must have, as its only purpose, the ability to shed light
on a witness’s veracity.[fn16] For the purposes of this
case, that issue need not be decided. Even if we were to
assume that Utah will adopt the more narrow interpretation
of the “solely for impeachment” exception and that
Marchant’s testimony was substantively relevant rather than
solely for the purpose of discrediting Claudia’s veracity,
we are not persuaded that the trial court committed
prejudicial error.
33 Klawe argues that it was reversible error for
the trial court to deny its motion to exclude Marchant’s
testimony as a sanction under rule 37(f). Again, assuming,
without deciding, that the admission of Marchant’s
testimony was improper, Klawe has failed to demonstrate
that the admission of the evidence was “harmful.” State v.
Lindgren, 910 P.2d 1268, 1271 (Utah Ct.App. 1996); see also
Stevenett v. Wal-Mart Stores, Inc., 1999 UT App 80,
§ 8, 977 P.2d 508 (“[T]he person asserting error has
the burden to show not only that the error occurred but also
that it was substantial and prejudicial.”). In other words,
Klawe has not shown that “absent the error there [wa]s a
reasonable likelihood of an outcome more favorable.”
Lindgren, 910 P.2d at 1271 (quotations and citation
omitted).
34 We note that “[t]he determination of whether
there is a reasonable likelihood of a more favorable
outcome is based upon a review of the record.” Id. at 1274.
“This review requires the appellate court to determine from
the record what evidence would have been before the jury
absent the trial court’s error.” Id. “When evidence is
erroneously admitted, it is possible for a reviewing court
to excise the offending evidence and evaluate the remaining
uncontested evidence so as to determine whether the
properly admitted evidence is such that the prevailing
party would have prevailed anyway.” Berrett v. Denver & Rio
Grande W. R.R. Co., 830 P.2d 291, 297 n. 10 (Utah Ct.App.
1992). Here, the record reveals that the trial consumed
five full days, of which Marchant’s testimony comprised a
mere five-minute fraction. Marchant testified only that he
was the principal broker for Coldwell, that he had never
seen the until-sold listing agreements for Monte Luca, and
that he did not believe that Coldwell would have accepted
the until-sold agreements. Given the short duration of
Marchant’s testimony, as well as the fact that he only
testified that he “believed” that Coldwell would not have
accepted the agreement, we are not persuaded that, in the
absence of Marchant’s testimony, Klawe had a “reasonable
likelihood of an outcome more favorable” on either its
unjust enrichment claim or its fraud claim. Lindgren, 910
P.2d at 1271. Therefore, we reject Klawe’s argument that
the trial court committed reversible error.
35 Klawe also argues that in the event its breach
of contract claim is remanded, this court should direct the
trial court to exclude Marchant’s testimony on any
subsequent trial of that issue. Again, we refuse to invade
the role of the trial court to make evidentiary rulings on
remand. “Trial courts have broad discretion in determining
discovery sanctions `because trial courts must deal first
hand with the parties and the discovery process.'” Hales v.
Oldroyd, 2002 UT App 75, § 15, 999 P.2d 588 (quoting
Utah Dep’t of Transp. v. Osguthorpe, 892 P.2d 4, 6 (Utah
1995)). One of the primary goals of the discovery process is
“to remove elements of surprise or trickery so the parties
and the court can determine the facts and resolve the
issues as directly, fairly, and expeditiously as possible.”
Ellis v. Gilbert, 19 Utah 2d 189, 429 P.2d 39, 40 (1967).
The trial court is in the best position to assess any
unfair surprise or prejudice that may remain if Marchant is
called to testify on remand.
III. Attorney Fees
36 Finally, Glacier appeals the trial court’s
ruling that Glacier waived its right to recover attorney
fees by failure to timely file. In Meadowbrook, L.L.C. v.
Flower, 959 P.2d 115 (Utah 1998), the Utah Supreme Court
announced a “clear rule” when addressing the precise issue
present here — “whether a prevailing party waives its
right to attorney fees if it fails to present evidence of
attorney fees or move the court during trial to allow
evidence of such fees to be presented after trial.” Id. at
117, 119. In Meadowbrook, the supreme court clarified that
a motion for attorney fees must be made during the “trial
phase” of the case, see id. at 117, and that “the `trial
phase’ ends . . . with the signed entry of final judgment
or order, at which time trial issues become ripe for
appeal,” id. at 119. The Meadowbrook court went on to note
that “[a]bsent a rule or statutory provision to the
contrary, the rule . . . prevents a party from bringing a
post-judgment motion for attorney fees.”[fn17] Id. at 119.
In the instant case, Glacier’s motion for attorney fees was
filed thirty-five days after the entry of final judgment
and nineteen days after the entry of the amended judgment,
which also disposed of all post-trial motions. Additionally,
Glacier has failed to identify an applicable “rule or
statutory provision” that would allow a post-judgment
motion for attorney fees in this case. Id. Therefore, under
Meadowbrook, Glacier waived its rights to fees and we
affirm the trial court’s denial of the motion for attorney
fees.
37 Klawe also seeks attorney fees on appeal
pursuant to Utah Rules of Appellate Procedure 33 and 40.
See Utah R. App. P. 33, 40. We deny the request.
CONCLUSION
38 Under Utah law, employment contracts of
indefinite duration are subject to an at-will presumption
that can be rebutted by, among other things, evidence of an
implied or express agreement that the employment could only
be terminated upon satisfaction of an agreed-upon
condition. When all facts and inferences are viewed in a
light most favorable to Klawe, summary judgment was
improperly granted because those facts could support a
finding that the parties reached an express agreement that
the exclusive listing agreement would terminate upon the
happening of an agreed-upon condition — the sale of
all the units in the Monte Luca development. Next, even if
we assume that Marchant’s testimony did not fall within the
“solely for impeachment” exception to the pretrial
disclosure requirements of rule 26 of the Utah Rules of
Civil Procedure, we hold that the trial court did not
commit reversible error because Klawe failed to demonstrate
harm. Additionally, we decline Klawe’s invitation to
require the trial court to allow Claudia’s testimony
regarding her altercation with Gough or to exclude
Marchant’s testimony on remand. Finally, we affirm the
trial court’s determination that Glacier waived its right
to attorney fees as the prevailing party and deny Klawe’s
motion for attorney fees incurred in this appeal.
Accordingly, we affirm in part and reverse and remand in
part for further proceedings consistent with this decision.
39 WE CONCUR: Russell W. Bench, Presiding Judge.
Pamela T. Greenwood, Associate Presiding Judge.
[fn1] Glacier also sought review of a number of the trial
court’s other rulings. However, that portion of the appeal
was not timely filed and was dismissed as beyond the
jurisdiction of this court. See Glacier Land Co. v. Claudia
Klawe & Assocs., 2006 UT App 209, 138 P.3d 109.
[fn2] Claudia Klawe later terminated her affiliation with
Coldwell and created Claudia Klawe & Associates Inc. to act
as her principal broker.
[fn3] Specifically the Listing Agreement & Agency Disclosure
form had been filled out to read:
The Seller hereby grants the Company, including Claudia
Klawe . . . as the authorized agent for the Company, for
the period of until sold months starting at the execution
of this listing agreement, and ending at 5:00 P.M. on the
sell day of out date 199, . . . the Exclusive Right to
Sell, Lease, or Exchange certain real property owned by
the Seller, described as: 40 stand alone residences [at]
Monte Luca. . . .
Portions of the text that are underscored represent blanks
in the form that were filled in by hand with the indicated
language. Text represented with a strike-through was
pre-printed on the form and crossed out by hand.
[fn4] Although the Steed Property could accommodate two or
three additional units, for convenience we refer to the
total number of units within Monte Luca as forty-two.
[fn5] Glacier also initiated claims including, but not
limited to, breach of fiduciary duty, breach of contract,
and intentional interference with economic relations.
However, because these claims are not within the subject
matter of this appeal, they will not be discussed further.
[fn6] Klawe asserts that because Marchant’s testimony was
not offered solely for impeachment, the exclusion of
Marchant’s testimony was mandatory under rule 37(f) of the
Utah Rules of Civil Procedure. Therefore, Klawe contends,
the trial court lacked discretion to award or deny
sanctions. We disagree. Klawe relies on the language of rule
37(f) which provides that if a party fails to disclose a
witness, as required by rule 26(a), “that party shall not
be permitted to use the witness.” Utah R. Civ. P. 37(f)
(emphasis added). However, Klawe removes rule 37(f) from
its context. Rule 37(f) states:
If a party fails to disclose a witness, . . . that party
shall not be permitted to use the witness, . . . unless
the failure to disclose is harmless or the party shows
good cause for the failure to disclose. In addition to or
in lieu of this sanction, the court may order any other
sanction, including payment of reasonable costs and
attorney fees, any order permitted under subpart
(b)(2)(A), (B), or (C) and informing the jury of the
failure to disclose.
Utah R. Civ. P. 37(f). Thus, although rule 37(f) begins
with the mandatory language cited by Klawe — that if
a party fails to disclose a witness that party shall not be
permitted to use the witness — the remainder of the
rule demonstrates that the trial court retains broad
discretion in choosing an appropriate sanction for failure
to disclose a witness. See id. For example, the trial court
may decline sanctions altogether upon a finding that the
failure to disclose is harmless or that the party had good
cause for failure to disclose. See id. Additionally, it is
within the trial court’s discretion to impose alternative
sanctions under rule 37(b)(2)(A), (B), or (C), or to limit
sanctions to informing the jury as to the party’s failure to
disclose. See id. Therefore, we review a trial court’s
award or denial of sanctions under rule 37(f), like
decisions under other subsections of rule 37, for an abuse
of discretion. See Harris v. IES Assocs., Inc., 2003 UT App
112, § 25, 69 P.3d 297.
[fn7] Exclusive listing agreements for the sale, lease, or
exchange of real property are properly treated as contracts
for employment and are subject to Utah’s at-will
presumption. See Gump & Ayers Real Estate, Inc. v. Domcoy
Investors V, 733 P.2d 128, 130 (Utah 1987) (applying Utah’s
at-will presumption to exclusive listing agreement).
[fn8] Some states have adopted an at-will rule that provides
that an employment contract is at-will unless the parties
agree to a definite term of duration; however, many of
those states have tempered the harshness of such a rule by
adopting a broad definition of definite duration like that
proposed by Klawe. See, e.g., Schultz v. Hill, 2002-0835,
pp. 5-6 (La.App. 1 Cir. 2/14/03), 840 So. 2d 641 (noting
that a term is definite if it “is determinable by . . . the
happening of a future event . . . even though the date of
the happening of that future event cannot be known until
its occurrence”); Aaland v. Lake Region Grain Coop., 511
N.W.2d 244, 246 (N.D. 1994) (holding that a term of
duration is definite when it “is determinable by an
ascertainable event”).
[fn9] Again, we state the facts as stipulated and draw all
reasonable inferences in the light most favorable to Klawe
for purposes of reviewing the trial court’s grant of
Glacier’s summary judgment motion.
[fn10] Fundamental principles of contract construction still
play a role in the analysis because “[a] wrongful
termination case based on a violation of an express or
implied term of the employment agreement rests on a duty
that an employer voluntarily undertakes as a consequence of
the employment agreement itself, whether express or
implied.” Fox v. MCI Commc’ns Corp., 931 P.2d 857, 860
(Utah 1997).
[fn11] Glacier presses the argument that because it is a
corporate entity existing into perpetuity and because it is
impossible to determine if or when it will ever complete
the Monte Luca development, the contract with Klawe also
extends into perpetuity limited by nothing but the
until-sold provision. Glacier overstates this proposition.
As a general rule, employment contracts for personal
services include an implied condition that the employment
relationship terminates upon the death of the employee,
thus, the death of Claudia is an additional condition that
would also terminate the contract. See 14 Corbin on
Contracts § 75.2, p. 128 (rev. ed. 2001) (“The death
of an employee who has contracted to render personal
service also discharges the employer from further duty,
except the duty to compensate for services already
received.”); see also Charles V. Webster Real Estate v.
Rickard, 98 Cal. Rptr. 559, 563-64 (Cal.Ct.App. 1971) (“The
owner-broker relationship is a personal one based on mutual
confidence. . . . [Thus, i]n the absence of an expression
of intention to the contrary, the continued life of both
reasonably must be deemed an implied condition of the
contract. In such a case the death of either renders
impossible the performance contemplated and the contract is
discharged.” (citation omitted)).
[fn12] By holding that the facts, when viewed in a light
most favorable to Klawe, could support a determination that
a meeting of the minds occurred and that, therefore, the
exclusive marketing agreement could only be terminated upon
the sale of the last unit, we do not intend to resolve any
contractual issues that may arise upon the actual
resolution of the disputed facts. Rather, we hold only that
Klawe is entitled to submit its interpretation to the trier
of fact.
[fn13] This holding is very narrow and only addresses
whether Klawe’s breach of contract claim was properly
disposed of on summary judgment on the ground that it was
an at-will contract as a matter of law. Our decision today
is limited to a review of whether, under Utah’s at-will
presumption, the “evidence, admissions, and inferences . . .
when viewed in the light most favorable to [Klawe]
establish that `there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.'” Rose v. Allied Dev. Co., 719
P.2d 83, 84 (Utah 1986) (quoting Utah R. Civ. P. 56(c)).
[fn14] During cross-examination, Glacier’s counsel elicited
testimony from Claudia as follows: “Glacier Counsel: `Do
you believe Coldwell Banker would have accepted an
until-sold listing agreement as of about August of 1999?
Yes or no.'” (Emphasis added.) “Claudia Klawe: `Yes.'”
[fn15] There is no dispute that Glacier was aware, sometime
prior to trial, that Marchant was prepared to testify that
he believed Coldwell would not accept until-sold listing
agreements.
[fn16] The Utah Supreme Court has previously discussed when
evidence is used “solely for impeachment purposes” within
the context of Utah’s Post-Conviction Remedies Act (the
Act), Utah Code Ann. §§ 78-35a-101 to -110
(2002 & Supp. 2006). See Wickham v. Galetka, 2002 UT 72,
§§ 13-14, 61 P.3d 978; Julian v. State, 2002
UT 61, § 20, 52 P.3d 1168. “Under the Act, a person
who has been convicted and sentenced for a criminal offense
may file a civil action for post-conviction relief to vacate
or modify the conviction or sentence” based on the
discovery of new evidence. Wickham, 2002 UT 72 at §
9. However, the Act does not provide relief if the newly
discovered evidence is “merely impeachment evidence.” Utah
Code Ann. § 78-35a-104(1)(e)(iii).
[fn17] Glacier argues that Promax Development Corp. v.
Raile, 2000 UT 4, 998 P.2d 254, casts doubt on the rules
regarding timing of motions for attorney fees as set forth
in Meadowbrook, L.L.C. v. Flower, 959 P.2d 115 (Utah 1998).
In Promax, the Utah Supreme Court held that “a trial court
must determine the amount of attorney fees awardable to a
party before the judgment becomes final for purposes of an
appeal.” 2000 UT 4 at § 15. However, Promax is not
in conflict with Meadowbrook because Promax presupposes
that the parties had filed their motions for attorney fees
before final judgment was entered on all other matters
before the court. Therefore, if a party moves for attorney
fees before entry of a final and appealable judgment or
order, see Meadowbrook, 959 P.2d at 117, it becomes a
pending matter before the trial court that must be resolved
before any subsequent judgment or order can become final
and appealable under Utah Rule of Appellate Procedure 3,
see Promax, 2000 UT 4 at § 15.