Salt Lake County v. Butler, Crockett & Walsh , 297 P.3d 38 ( 2013 )

2013 UT App 30_________________________________________________________
THE UTAH COURT OF APPEALS
SALT LAKE COUNTY,
Plaintiff and Appellee,
v.
BUTLER, CROCKETT & WALSH DEVELOPMENT CORPORATION,
Defendant and Appellant.
Opinion
No. 20110856‐CA
Filed January 31, 2013
Third District, Salt Lake Department
The Honorable Robert P. Faust
No. 070913769
John Walsh, Attorney for Appellant
Donald H. Hansen and David H.T. Wayment,
Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion,
in which JUDGES CAROLYN B. MCHUGH
and STEPHEN L. ROTH concurred.
VOROS, Judge:
¶1 This appeal presents a dispute over attorney fees. The
appeal arises from appellee Salt Lake County’s unsuccessful
attempt to condemn a portion of Emigration Canyon real estate
owned by appellant Butler, Crockett & Walsh Development
Corporation (BCW). Having prevailed at trial, BCW sought an
award of attorney fees and costs under the Eminent Domain Act
and bad faith fee statute. The trial court rejected BCW’s claims
Salt Lake County v. Butler, Crockett & Walsh
under the two statutory provisions. The court also ruled that, in
any event, BCW could not recover attorney fees in view of the fact
that its attorney and his wife owned virtually all of the stock of
BCW.1 We affirm.
BACKGROUND
¶2 In 2007, the Salt Lake County Council passed a condemna‐
tion resolution as part of the Pinecrest Turnaround Improvement
Project, directing the Salt Lake County District Attorney to acquire
787 square feet of land belonging to BCW. Accordingly, the County
filed a Complaint for Condemnation.
¶3 The County also filed a motion to disqualify John Walsh as
BCW’s attorney on the ground that he would be a key witness if
the matter went to trial. During the pendency of this motion,
attorney Kevin Anderson entered an appearance as counsel for
BCW. However, thirteen days later, the County and BCW stipu‐
lated that Mr. Walsh could represent BCW until trial.
¶4 The County also filed a Motion for Immediate Occupancy.
The court held a four‐day evidentiary hearing on the motion. At
the conclusion of the hearing, the court found that the County
“designed the proposed turnaround without adequately consider‐
ing the impact on the adjoining land, the water systems currently
in place, the burden of additional snow storage on [BCW’s]
property, and the parking situation and its resulting impact on
future development.” The court also found that the testimony of
one of the County’s witnesses suggested the existence of “other
designs . . . which would have been potentially less injurious.”
Finally, the court concluded that the County had acted with “a
level of disregard which rises to arbitrariness” and had not “acted
reasonably or in good faith.” Accordingly, the court denied “the
1. John Walsh (counsel for BCW) and his wife own 98% of the stock
of BCW.
20110856‐CA 2 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
Order of Immediate Occupancy, as that occupancy is currently
framed.” However, the court noted that “the County could
potentially meet [the] requirements” of the Eminent Domain Act.
See generally Utah Code Ann. § 78B‐6‐504 (LexisNexis 2012).2
¶5 On July 31, 2008, the County sent a letter to the court seeking
guidance as to whether the trial should be canceled in light of the
court’s ruling. Specifically, the County expressed concern that no
triable issues remained, rendering trial moot. The court did not
reply directly but, on August 1, 2008, canceled the trial date of
August 25, 2008.
¶6 BCW prepared proposed findings of fact and conclusions of
law at the request of the court. The court twice rejected BCW’s
proposed findings and conclusions, and required BCW to remove
the attorney fee award it had included in the proposed order.
¶7 On December 10, 2008, the County filed a motion for
voluntary dismissal with prejudice (later amended to seek dis‐
missal without prejudice). Within a week, BCW filed a motion
seeking undetermined attorney fees and costs under the abandon‐
ment statute of the Eminent Domain Act. See id. § 78B‐6‐517.3 Two
2. During the course of this litigation, Utah Code section 78‐34‐4
was renumbered as section 78B‐6‐504, section 78‐27‐56 was
renumbered as section 78B‐5‐825, and section 78‐34‐16 was
renumbered as section 78B‐6‐517. Because the renumbering did not
affect the text of the statutes, we cite to the current versions for the
convenience of the reader.
3. The abandonment statute states, in pertinent part, that a
“[c]ondemner . . . may, at any time prior to final payment of
compensation and damages awarded the defendant . . . abandon
the proceedings and cause the action to be dismissed without
prejudice, provided, however, that as a condition of dismissal
condemner first compensate condemnee for all damages he has
(continued...)
20110856‐CA 3 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
weeks later, the County moved to either (1) withdraw the motion
for dismissal without prejudice, or (2) enter the County’s proposed
order dismissing without prejudice. The County argued that it had
not voluntarily chosen to abandon the condemnation but had
instead lost at trial. It cited its July 31, 2008 letter inquiring whether
the trial was canceled. The County also stated that BCW had
ignored the County’s offer to stipulate to dismissal with prejudice
in light of the court’s ruling.
¶8 The court issued a minute entry (1) denying the County’s
attempt to withdraw its motion to dismiss and (2) granting BCW
undetermined attorney fees pursuant to Utah Code section 78B‐6‐
517 on the ground that the County had voluntarily dismissed the
underlying action. The court noted that the July 15, 2008 minute
entry order had ruled only on the motion for immediate occupancy
and that the County could have reframed the condemnation and
proceeded.
¶9 The County moved to amend the order on the ground that
the court had erred in granting the County’s motion to dismiss. The
County argued that, under the language of the abandonment
statute, a court may not grant a condemnor’s voluntary dismissal
motion until the condemnor has compensated the condemnee for
attorney fees and other damages sustained as a result of the
condemnation action. See id. § 78B‐6‐517. According to this
seemingly circular reading of the abandonment statute, the trial
court could not grant the condemnee attorney fees under the
statute until the condemner had already paid the condemnee’s fees.
3. (...continued)
sustained and also reimburse him in full for all reasonable and
necessary expenses actually incurred” as a result of the
condemnation action, “including attorney fees.” See Utah Code
Ann. § 78B‐6‐517 (LexisNexis 2012). We previously commented on
the “questionable policy” of this statute. See Provo City v. Ivie, 2008
UT App 287, ¶ 7, 191 P.3d 841.
20110856‐CA 4 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
On April 29, 2009, the court agreed, granted the County’s motion
to amend the order, and vacated the dismissal and award of
attorney fees.
¶10 The court also clarified that its earlier ruling had been
limited “to the proposed turnaround as it was then presented” and
thus did not bar the County’s condemnation action altogether.
Accordingly, the County moved to amend its complaint, reducing
the target parcel from 787 square feet to 111 square feet. After a
two‐day bench trial, the court issued a memorandum decision
denying the condemnation. The court found that the reduced
condemnation proposal had met the requirements of Utah Code
section 78B‐6‐504(1), in that the proposed use was “authorized by
law” and “the taking [was] necessary for the use,” but was not
“compatible with the greatest public good and the least private
injury,” as required by Utah Code section 78B‐6‐506. Because the
decision did not address the issue of attorney fees, BCW raised this
issue in subsequent filings, as explained below.
ISSUES AND STANDARDS OF REVIEW
¶11 BCW advances three main contentions on appeal. First,
BCW contends that the trial court erred in not awarding it attorney
fees and costs under the bad faith fee statute, Utah Code Ann.
§ 78B‐5‐825 (LexisNexis 2012). We review a finding of bad faith
under the clearly erroneous standard. Still Standing Stable, LLC v.
Allen, 2005 UT 46, ¶ 8, 122 P.3d 556.
¶12 Second, BCW contends that the trial court erred in not
awarding it attorney fees and costs under the United States
Constitution and the Utah Constitution. BCW did not preserve this
claim in the trial court. “When a party raises an issue on appeal
without having properly preserved the issue below, we require
that the party articulate an appropriate justification for appellate
review; specifically, the party must argue either plain error or
20110856‐CA 5 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
exceptional circumstance[s].” State v. Winfield, 2006 UT 4, ¶ 14, 128
P.3d 1171 (citation and internal quotation marks omitted).
¶13 Finally, BCW requests an award of attorney fees on appeal.
“[W]hen a party who received attorney fees below prevails on
appeal, ‘the party is also entitled to fees reasonably incurred on
appeal.’” Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998)
(quoting Utah Dep’t of Social Servs. v. Adams, 806 P.2d 1198, 1197
(Utah Ct. App. 1991)).
ANALYSIS
I. Jurisdiction
¶14 As a threshold matter, the County contends that this court
lacks jurisdiction to adjudicate the appeal because BCW’s notice of
appeal was not timely filed. We conclude that we have jurisdiction.
¶15 “[F]ailure to timely perfect an appeal is a jurisdictional
failure requiring dismissal of the appeal.” Prowswood, Inc. v.
Mountain Fuel Supply Co., 676 P.2d 952, 955 (Utah 1984). A notice of
appeal must be “filed with the clerk of the trial court within 30
days after the date of entry of the judgment or order appealed
from.” Utah R. App. P. 4(a). BCW’s notice of appeal was filed on
September 14, 2011. The question, then, is whether the time for
filing had already expired.
¶16 The County asserts that the March 15, 2011 memorandum
decision was a final, appealable order. We assume for purposes of
this analysis that it was. After entry of that order, BCW filed a
motion to alter or amend pursuant to rule 59 of the Utah Rules of
Civil Procedure. A rule 59 motion must be served “not later than
10 days after the entry of the judgment.” Utah R. Civ. P. 59(b). The
County concedes that BCW’s rule 59 motion was timely.
¶17 A timely rule 59 motion stops the appeals clock; thereafter,
“the time for all parties to appeal from the judgment runs from the
20110856‐CA 6 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
entry of the order disposing of the motion.” Utah R. App. P.
4(b)(1)(C). The County asserts that the order disposing of BCW’s
rule 59 motion was the trial court’s “Ruling” dated May 25, 2011.
Accordingly, the County argues that the time to appeal ran from
May 25, 2011, and BCW’s notice of appeal filed September 14, 2011,
was well past the thirty‐day limit.
¶18 However, the court’s May 25, 2011 ruling did not comply
with rule 7(f) of the Utah Rules of Civil Procedure. Under rule 7(f),
“unless the court specifically directs otherwise, the prevailing party
must submit an order to the court before the time for appeal will
begin running.” Houghton v. Dep’t of Health, 2008 UT 86, ¶ 11, 206
P.3d 287. Neither party here submitted a proposed order in
response to the court’s May 25, 2011 ruling, and the ruling itself did
not direct otherwise. The ruling thus did not comply with rule 7(f).
An order not in compliance with rule 7(f) is not final for the
purposes of appeal. Giusti v. Sterling Wentworth Corp., 2009 UT 2,
¶ 32–33, 201 P.3d 966; Code v. Utah Dep’t of Health, 2007 UT 43, ¶ 9,
162 P.3d 1097. Consequently, contrary to the County’s assertion,
the May 25, 2011 ruling did not restart the running of the thirty
days.
¶19 That ruling did, however, prompt a second motion to alter
or amend from BCW. The court disposed of that motion in a
memorandum decision dated August 3, 2011. In compliance with
rule 7(f), BCW prepared and submitted an Order, Judgment and
Decree, which the court entered on August 16, 2011. This final
judgment restarted the appeals clock under rule 4(b)(1)(C) of the
Utah Rules of Appellate Procedure. BCW’s September 14, 2011
notice of appeal was thus filed within thirty days of the final
judgment. This court consequently has jurisdiction over the appeal.
II. Claim for Attorney Fees Under the Bad Faith Fee Statute
¶20 The trial court’s May 25, 2011 ruling rejected BCW’s request
for attorney fees on multiple grounds. First, it denied fees under
the bad faith fee statute. See Utah Code Ann. § 78B‐5‐825
20110856‐CA 7 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
(LexisNexis 2012). Under that statute, “[i]n civil actions, the court
shall award reasonable attorney fees to a prevailing party if the
court determines that the action or defense to the action was
without merit and not brought or asserted in good faith . . . .” Id.The court denied the fee request primarily on the basis that BCW
had not proven that the County had acted with “a dishonest
motive” or “ill will” either in the four‐day immediate occupancy
hearing or the two‐day trial.
¶21 Significantly, the court also stated alternative grounds for its
ruling. “Assuming for the sake of argument that the Court did find
[the bad faith] standard had been met,” the court stated, it
nevertheless would have declined to award fees on two additional
grounds. First, BCW’s counsel had not submitted “a detailed
affidavit to support such an award.” And second, BCW’s counsel
had not shown that BCW “was actually billed for his work.” The
court required this proof in light of the fact that Mr. Walsh and his
wife own virtually all BCW’s corporate stock and that Mr. Walsh
therefore “acted in his own interest in representing the corporation,
much as a pro se litigant would.”
¶22 In response, BCW filed a motion to alter or amend asserting
four points. First, it reiterated its claim under the abandonment
statute. See Utah Code Ann. § 78B‐6‐517 (LexisNexis 2012). Second,
it reiterated its claim under the bad faith fee statute. See id. § 78B‐5‐
825. Third, it sought fees for the work of attorney Kevin Anderson,
whose billings, BCW alleged, amounted to “many thousands and
thousands of dollars.” Finally, it sought an award of costs.
¶23 The court rejected BCW’s request for attorney fees pursuant
to the abandonment statute. The court reiterated its ruling that the
County had not acted in violation of the bad faith fee statute, citing
the controlling standard announced in Cady v. Johnson, 671 P.2d 149(Utah 1993). The court also rejected BCW’s claim for Mr.
Anderson’s fees on three grounds. First, Mr. Anderson’s
examination of Mr. Walsh lasted “only a few hours.” Second, the
abandonment statute does not provide for attorney fees where the
20110856‐CA 8 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
condemnation action was not abandoned and dismissed. Third,
Mr. Anderson did not submit a fee affidavit. Finally, the court
awarded BCW costs in the amount of $1,199.33.
¶24 With this background in mind, we turn to BCW’s first claim
on appeal. BCW contends that the trial court erred in denying its
motion for attorney fees and costs pursuant to the bad faith fee
statute. See Utah Code Ann. § 78B‐5‐825(1) (LexisNexis 2012). BCW
claims that the County acted in bad faith both “during the
litigation” and “outside the litigation.”
¶25 The trial court ruled that the evidence did “not support a
finding that the [County] acted in bad faith, even using the
definition proposed by [BCW] as set forth in Cady.” Under Cady, a
finding of bad faith must be based on the absence of one or more
of the following three factors: “(1) An honest belief in the propriety
of the activities in question; (2) no intent to take unconscionable
advantage of others; and (3) no intent to, or knowledge of the fact
that the activities in question will[] hinder, delay, or defraud
others.” Id. at 151–52 (alteration in original) (citation and internal
quotation marks omitted).
¶26 BCW alleges that the County acted in bad faith. It argues
that the County and BCW’s principal, Mr. Walsh, share a
contentious history; that the County filed this condemnation action
with inadequate investigation and scant consideration of the
statutory requirements; that a four‐day evidentiary hearing on the
County’s motion for immediate occupancy resulted in a finding
that the County had acted arbitrarily and in bad faith; that the
County then moved to dismiss the action and withdrew that
motion only after BCW sought attorney fees under the
abandonment statute; that the County dragged BCW through three
more years of litigation; that while the County ultimately sought
only one‐seventh of the parcel originally requested, it was the
critical portion (containing BCW’s underground water tanks); and
that the County’s revised proposal addressed few of the flaws
identified by the trial court after the immediate occupancy hearing.
20110856‐CA 9 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
¶27 On the other hand, a “finding of bad faith turns on a factual
determination of a party’s subjective intent.” Still Standing Stable,
LLC v. Allen, 2005 UT 46, ¶ 9, 122 P.3d 556. It is thus “within the
trial court’s discretion to determine bad faith under this section.”
Canyon Country Store v. Bracey, 781 P.2d 414, 421 (Utah 1989)
(interpreting the predecessor statute to section 78B‐5‐825). We
review such a determination under the clearly erroneous standard.
Still Standing Stable, 2005 UT 46, ¶ 8. Findings of lack of bad faith
are occasionally reversed, see Wardley Better Homes and Gardens v.
Cannon, 2002 UT 99, 61 P.3d 1009, but not often. Here, the trial
court declined to find bad faith after a four‐day evidentiary hearing
and a two‐day trial—and even after originally finding that the
County had acted arbitrarily and without good faith in the
immediate occupancy hearing.
¶28 Given the posture of this case, we need not resolve the bad
faith issue. This court will not reverse a ruling of the trial court that
rests on independent alternative grounds where the appellant
challenges only one of those grounds. See Republic Outdoor Adver.,
LC v. Utah Dep’t of Transp., 2011 UT App 198, ¶ 32, 258 P.3d 619(where appellant failed to adequately challenge an independent
basis for the grant of summary judgment, court declined to
consider a challenge to an alternative basis for the court’s ruling);
State v. Montiel, 2004 UT App 242, ¶ 20, 95 P.3d 1216 (stating that,
when challenging a trial court’s decision, appellant must address
all of the circumstances upon which the court’s decision was
based); Duchesne Land, LC v. Division of Consumer Prot., 2011 UT
App 153, ¶ 8, 257 P.3d 441 (rejecting appellate claim on the ground
that it did not address the actual basis for the trial court’s ruling);
see also Maher v. City of Chicago, 547 F.3d 817, 821 (7th Cir. 2008)
(stating that appellant waives challenge to trial court’s ruling by
challenging only one of two independent grounds for the ruling);
Utah ex rel. Div. of Forestry, Fire & State Lands v. United States, 528
F.3d 712, 724 (10th Cir. 2008) (noting that appellants’ failure to
challenge district court’s independent ground for decision waived
20110856‐CA 10 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
any objection to the federal district court’s ruling on the challenged
ground).
¶29 As explained above, the trial court rejected BCW’s fee
request on alternative grounds. It rejected the request based
principally on its finding that the County had not acted in bad
faith. But it also rejected the request for Mr. Walsh’s fees on the
ground that Mr. Walsh fell under the pro se litigant rule due to the
fact that he and his wife owned virtually all the shares of BCW.4
And it rejected the request for Mr. Anderson’s fees on the grounds
that the work was limited and that no fee affidavit was submitted.
¶30 The trial court explained that these grounds were
independent, alternative grounds for its ruling; it stated that it
would not award attorney fees to BCW even “[a]ssuming for the
sake of argument that the Court did find [the bad faith] standard
had been met.” Because BCW does not challenge these
independent grounds for the court’s denial of its attorney fee
request, we decline to reverse the trial court’s refusal to award
attorney fees under the bad faith fee statute.
4. Whether an attorney is entitled to a fee award for representing
a corporation when the attorney and attorney’s spouse own
virtually all the corporate shares appears to be a question of first
impression in Utah. Cf. Softsolutions, Inc. v. Brigham Young Univ.,
2000 UT 46, ¶ 45, 1 P.3d 1095 (“[A] successful litigant who is not
primarily engaged in providing legal services may recover attorney
fees when represented by salaried in‐house counsel.”); Jones, Waldo,
Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1375 (Utah 1996)
(holding that law firm using its own attorneys in collection action
may not recover attorney fees under retainer agreement, because
it does not “incur” fees); Smith v. Batchelor, 832 P.2d 467, 473–74
(Utah 1992) (holding that pro se litigants may not recover attorney
fees, “regardless of their professional status”).
20110856‐CA 11 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
III. Uncompensated Takings Claim Under
the State and Federal Constitutions
¶31 BCW contends that the actions of the County violated the
Takings Clause of the United States Constitution and its more
expansive counterpart in the Utah Constitution. See U.S. Const.
amend. V; Utah Const. art. I, § 22; Bagford v. Ephraim City, 904 P.2d
1095, 1097 (Utah 1995) (noting that Article I, section 22 of the Utah
Constitution is “broader in its language than the similar provision
in the Fifth Amendment of the United States Constitution.”). BCW
argues that the County tied up its development project for “the
four years in history when the real estate market was at an all time
high and fell to an all time low.” BCW further argues that the
County’s unsuccessful condemnation litigation itself constitutes a
regulatory taking and that just compensation for the alleged taking
includes attorney fees. The County does not respond to BCW’s
constitutional claims. Nevertheless, those claims do not succeed on
appeal.
¶32 Like the Utah Supreme Court, “we are resolute in our
refusal to take up constitutional issues which have not been
properly preserved, framed and briefed . . . .” Brigham City v.
Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506, revʹd on other grounds, 547
U.S. 398 (2006). To be preserved for appeal, an issue “must be
presented to the trial court in such a way that the trial court has an
opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc.,
2004 UT 72, ¶ 51, 99 P.3d 801 (brackets, citation, and internal
quotation marks omitted). Among other things, this standard
requires that the issue be “specifically raised.” See id. (citation and
internal quotation marks omitted). “‘Where there is no clear or
specific objection and the specific ground for objection is not clear
from the context[,] the theory cannot be raised on appeal.’” State v.
Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (alteration in original) (quoting
State v. Johnson, 2006 UT App 3, ¶ 13, 129 P.3d 282). Thus, if a party
makes an objection at trial based on one ground, this objection does
not preserve for appeal any alternative ground for objection. Id.
20110856‐CA 12 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
(citing State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986); State v.
Smedley, 2003 UT App 79, ¶¶ 9–13, 67 P.3d 1005).
¶33 “When a party raises an issue on appeal without having
properly preserved the issue below, we require that the party
articulate an appropriate justification for appellate review;
specifically, the party must argue either plain error or exceptional
circumstance[s].” State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171(citation and internal quotation marks omitted). The Utah Rules of
Appellate Procedure thus require an appellant’s brief to contain a
“citation to the record showing that the issue was preserved in the
trial court” or “a statement of grounds for seeking review of an
issue not preserved in the trial court.” Utah R. App. P. 24(a)(5)(A),
(B).
¶34 BCW’s brief contains no citation to the record showing that
its claims based on the United States and Utah Constitutions were
preserved in the trial court, nor does our review of the record
indicate that they were. Further, BCW does not invoke either plain
error or exceptional circumstances. Accordingly, its constitutional
claims are not properly before us.
¶35 Broderick v. Apartment Management Consultants, LLC, 2012 UT
17, 279 P.3d 391, does not alter this result. The County’s brief does
not acknowledge BCW’s constitutional claims. Consequently, BCW
argues in its reply brief that the appellate court “will treat the
matter as though the Appellee concurs in the Appellant’s claims.”
See generally Broderick, 2012 UT 17.
¶36 The appellants in Broderick met their burden of persuasion
on appeal, presenting a “plausible claim” that a contractual
provision was unenforceable. Id. ¶ 19. Appellees failed to address
the appellants’ arguments, leaving the claim unrebutted. Id. Our
supreme court refused to “bear the burden of argument and
research” or to “create arguments” on behalf of the appellees. Id.Consequently, as a result of the appellees’ inadequate briefing, the
court rejected appellees’ brief and, without reaching the merits of
20110856‐CA 13 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
the broader issues raised by the appellants’ claim, reversed,
holding that the contract provision challenged by the appellants
was unenforceable. Id. ¶¶ 20–21.
¶37 Broderick does not control the present issue. As explained
above, BCW’s constitutional claims were not preserved in the trial
court and so are not properly before this court. Nothing in Broderick
suggests that an appellate court will reverse the judgment of a trial
court based on an unrebutted but unpreserved claim. Accordingly,
we reject BCW’s Broderick argument on this ground.5
5. In any event, unlike the Broderick appellants, BCW has not met
its burden of persuasion on appeal by adequately briefing a
plausible claim. An issue is inadequately briefed “when the overall
analysis of the issue is so lacking as to shift the burden of research
and argument to the reviewing court.” State v. Thomas, 961 P.2d
299, 305 (Utah 1998). In such a circumstance, the appellate court
will not assist the appellant “by formulating arguments on its
behalf or translating its problematic arguments into plausible
ones.” B.A.M. Development, LLC, v. Salt Lake County, 2012 UT 26,
¶ 35 n.8, 282 P.3d 41.
BCW contends that the federal and state constitutions entitle
it to compensation for the taking of its property. In fact, the
County’s attempt to take BCW’s property failed. Consequently,
although BCW describes this case as “a classic taking,” it is hardly
that. Indeed, it is unclear that any sort of taking occurred. The core
of BCW’s claim is that a failed condemnation action can constitute
a regulatory taking. Its secondary argument is that its attorney fees
fall within the measure of damages for such a taking. However, the
authority cited by BCW addresses neither point, and BCW offers
no argument for its extension. BCW’s analysis of the issue is thus
“so lacking as to shift the burden of research and argument to the
reviewing court.” Thomas, 961 P.2d at 305. Accordingly, unlike the
appellants in Broderick, BCW has not met its burden of persuasion
on appeal by presenting a plausible claim. See Broderick, 2012 UT
17, ¶ 19.
20110856‐CA 14 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
¶38 BCW’s constitutional takings claims come to us as an
afterthought in this case, and an incomplete one at that.
Consequently, despite the County’s failure to respond to these
claims, we decline to address them further.
IV. Claim for Attorney Fees on Appeal
¶39 Finally, BCW seeks attorney fees on appeal. “[W]hen a party
who received attorney fees below prevails on appeal, ‘the party is
also entitled to fees reasonably incurred on appeal.’” Valcarce v.
Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (quoting Utah Dep’t of
Social Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct. App. 1991)). As
BCW has not prevailed on appeal, we decline to award fees on
appeal.6
CONCLUSION
¶40 We conclude that we have jurisdiction to review this appeal
because BCW’s September 14, 2011 notice of appeal was filed
within thirty days of the final judgment, which was entered on
August 16, 2011. We decline to disturb the trial court’s
determination not to award attorney fees, because BCW challenges
only one of the trial court’s independent grounds for that
determination. And we decline to address BCW’s unpreserved
constitutional claims except to note that the County’s failure to
6. To the extent that we have not addressed other points or
subpoints raised in BCW’s briefs, we have determined them either
to be disposed of by the foregoing analysis or to lack merit, and we
decline to address them further. See State v. Carter, 776 P.2d 886, 888
(Utah 1989) (“[T]his court need not analyze and address in writing
each and every argument, issue, or claim raised and properly
before us on appeal. Rather it is a maxim of appellate review that
the nature and extent of an opinion rendered by an appellate court
is largely discretionary with that court.”).
20110856‐CA 15 2013 UT App 30Salt Lake County v. Butler, Crockett & Walsh
address those claims did not relieve BCW of its burden of
persuasion.
¶41 Affirmed.
20110856‐CA 16 2013 UT App 30