Opinion
Case No. 20020336-CA.
Filed October 23, 2003. (Not For Official Publication)
Appeal from the Second District, Ogden Department, The Honorable Stanton M. Taylor.
Lynn A. Jenkins, Bountiful, Appellant Pro Se
John B. Wilson and Laura S. Scott, Salt Lake City, for Appellees.
Before Judges Jackson, Bench, and Davis.
MEMORANDUM DECISION
Jenkins's basic contention is that the trial court erred in finding that his Notice of Interest was a wrongful lien under the Utah Wrongful Lien Act. We disagree. The trial court's factual findings are not disturbed on appeal unless they are clearly erroneous. See Lefavi v. Vertoch, 2000 UT App 5, ¶ 16, 994 P.2d 817. After carefully reviewing the facts, the trial court found that Jenkins's Notice of Interest was not: (1) authorized by state or federal statutes, (2) authorized by a court order or judgment of a competent court, or (3) signed pursuant to a document signed by Smedley or an otherwise rightful owner. See Utah Code Ann. § 39-9-1(6) (2002). Therefore, the court properly concluded that Jenkins's Notice of Interest was a wrongful lien. Jenkins next argues that, through his Notice of Interest, he is entitled to $30,000 held in escrow. Because the Notice of Interest was a wrongful lien, Jenkins lost whatever claim he may have had to the $30,000. Furthermore, Jenkins fails to present any evidence in support of his claim that Smedley falsely altered the affidavits describing the actual damages of $13,550. Without specific evidence, Jenkins's allegation is mere speculation and therefore without merit.
See Utah Code Ann. §§ 39-9-1 to -7 (2002).
Jenkins also alleges that the trial court's disposition of this case deprived him of his due process rights and his right to a jury trial. However, since these issues are being raised for the first time on appeal, we do not consider them. See Groberg v. Housing Opportunities, Inc., 2003 UT App 67, ¶ 11, 68 P.3d 1015.
Jenkins's claim that the court erred in granting Smedley attorney fees also fails. We review this claim under a clear abuse of discretion standard. See Cafferty v. Hughes, 2002 UT App 105, ¶ 26, 46 P.3d 233. The court based its decision to grant attorney fees on reliable affidavits provided by Smedley's attorneys. These affidavits confirmed that (1) the work performed was reasonably necessary to adequately prosecute the matter, and (2) the billing rates were consistent with rates customarily charged in Weber County for similar services. These findings are in line with Utah attorney fees standards. See R.T. Nielsen Co. v. Cook, 2002 UT 11, ¶ 21, 40 P.3d 1119. Therefore, the court's grant of attorney fees to Smedley was reasonable. Furthermore, because Smedley prevails on this appeal, we grant him his requested costs and attorney fees on appeal. See Utah Dep't of Soc. Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct.App. 1991).
On cross-appeal, Smedley contends that the trial court's refusal to award treble actual damages was incorrect. Because this issue calls for statutory interpretation, we review it under a non-deferential correctness standard. See Russell v. Thomas, 2000 UT App 82, ¶ 8, 999 P.2d 1244. Utah Code Annotated section 38-9-4(1)(3) (2002) provides in part that a holder of a wrongful lien "is liable to that record interest holder for $1,000 or for treble actual damages, whichever is greater." The language is plain and unambiguous. Since Smedley's actual damages of $13,550 exceed $1,000, Smedley is entitled to treble actual damages.
Affirmed in part, reversed in part, and remanded for an award of treble damages, attorney fees, and costs Smedley reasonably incurred on appeal.
WE CONCUR: Norman H. Jackson, Presiding Judge, and James Z. Davis, Judge.