Opinion
Case No. 20020334-CA.
Filed June 12, 2003. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Roger A. Livingston.
Clifford C. Ross and Tim Dalton Dunn, Salt Lake City, for Appellant.
John Dustin Morris and William Mark, Salt Lake City, for Appellee.
Before Judges Jackson, Greenwood, and Orme.
MEMORANDUM DECISION
Mule-Hide Products Co. (Mule-Hide) argues the trial court erred in denying in part its Motion for Summary Judgment, rejecting Mule-Hide's request for attorney fees incurred during the appeal of Mule-Hide Prods. Co. v. White, 2002 UT App 1, 40 P.3d 1155 (Mule-Hide I). Specifically, Mule-Hide argues that because it was initially awarded attorney fees by the trial court based on the parties' contract, the trial court, on Mule-Hide's motion following our decision in Mule Hide I, erred in not automatically awarding attorney fees incurred during the appeal ofMule-Hide I.
As conceded by Mule-Hide, it requested attorney fees in its brief filed in Mule-Hide I, both in its statement of the issues and also briefly in its conclusion, stating, "Mule-Hide respectfully requests the appellate court to award it attorney fees on appeal together with costs." However, this court did not award Mule-Hide attorney fees. Rather, we stated that Mule-Hide "allud[ed] to attorney fees on appeal in its statement of issues but its brief contains no analysis." Id. at ¶ 13 n. 5. We agree with Mule-Hide that footnote five of Mule-Hide I is somewhat ambiguous in its citation to authority referring to problems associated with raising an issue for the first time on appeal. The quotation included is unrelated to the issue of attorney fees recoverable on appeal or briefing requirements. However, because Mule-Hide I did not grant Mule-Hide's request for attorney fees, albeit rather oddly, if Mule-Hide had any question as to the opinion's meaning it should have sought clarification through a petition for rehearing. See Utah R.App.P. 35; State v. Walker, 2002 UT App 290, ¶ 9 n. 5, 55 P.3d 1165 ("[Appellee] should have filed a petition for rehearing if it believed the [court of appeals' opinion] was decided incorrectly rather than waiting to reargue the issue now.").
Interestingly, the case cited in footnote five, State v. Helmick, 2000 UT 70, 9 P.3d 164, also states that "an appellate court will decline to consider an argument that a party has failed to adequately brief."Id. at ¶ 7 (quotations and citations omitted).
Under the law of the case doctrine, the denial of attorney fees inMule-Hide I forecloses a subsequent request before the trial court, or this court, for fees incurred during the first appeal. See Gildea v. Guardian Title Co. of Utah, 2001 UT 75, ¶ 9, 31 P.3d 543 ("Under the law of the case doctrine, issues resolved by this court on appeal bind the trial court on remand, and generally bind this court should the case return on appeal after remand."). Thus, we affirm.
Christine White argues that she should be awarded attorney fees for this appeal both under rule 33 of the Utah Rules of Appellate Procedure, which grants attorney fees for frivolous appeals, and under the parties' original contract, which grants attorney fees to the prevailing party. We do not believe this appeal is frivolous and therefore deny White attorney fees under rule 33. Furthermore, Utah Code Ann. § 78-27-56.5 (2002) states, "A court may award costs and attorney fees to either party that prevails in a civil action based" on a contract, "when the provision of the . . . written contract . . . allow[s] at least one party to recover attorney fees." (Emphasis added.) The use of the word "may" in section 78-27-56.5 gives this court discretion in awarding attorney fees to the prevailing party. See Holmes Dev., L.L.C. v. Cook, 2002 UT 38, ¶ 25, 48 P.3d 895 (defining accepted meaning of the word "may"); see also Schafir v. Harrigan, 879 P.2d 1384, 1394 (Utah Ct.App. 1994) (citing section 78-27-56.5 as giving the trial court discretion to award attorney fees). Because we believe Mule-Hide I generated some confusion, we also decline to award fees under the contract. Therefore, both parties will bear their own costs and attorney fees on appeal.
WE CONCUR: Norman H. Jackson, Presiding Judge, and Gregory K. Orme, Judge.