Fuja v. Adams

2021 UT App 55

THE UTAH COURT OF APPEALS

TANNIN FUJA AND MEGAN FUJA,
Appellees,
v.
JOHN ADAMS AND JENNIFER ADAMS,
Appellants.

Opinion
No. 20200009-CA
Filed May 27, 2021

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 190401270

Benson L. Hathaway and Ryan R. Beckstrom,
Attorneys for Appellants
Richard H. Reeve, Attorney for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 In this case, we are asked to decide whether a litigant
claiming to have sustained damages because of a wrongfully
issued injunction must assert a claim to such damages before the
injunction is determined to have been improvidently granted.
John and Jennifer Adams (the Adamses) claim to have sustained
such damages, but they did not assert that claim until after the
district court, in a two-day bench trial, determined that a
preliminary injunction entered against them had been
improvidently granted. The court dismissed the Adamses’
damages claim as untimely, and they now appeal. We reverse.
 Fuja v. Adams

BACKGROUND

¶2 The Adamses own a residential lot adjacent to property
owned by Tannin and Megan Fuja (the Fujas). Both parcels are
located in a subdivision that is subject to a set of recorded
covenants, conditions, and restrictions (the CC&Rs). In July 2019,
after obtaining a building permit from the relevant municipal
authorities, the Adamses began building a house on their lot.

¶3 The Fujas believed that the Adamses’ construction plans
were not in compliance with the CC&Rs, and in August 2019
they filed suit to halt construction on the Adamses’ lot. In their
complaint, the Fujas asserted that they were entitled to
“preliminary and permanent injunction[s] terminating
construction of the [Adamses’] new residence and requiring
complete compliance with the CC&Rs.” The day after filing their
complaint, the Fujas filed a motion asking the district court to
enter a temporary restraining order (TRO) and a preliminary
injunction forbidding further construction.

¶4 A few days later, the court issued a TRO, conditioned on
the Fujas posting a $5,000 cash bond, which they did. The TRO
required the Adamses to cease further construction for at least a
few days until the court could hold a hearing to determine
whether to issue a preliminary injunction. The Adamses did not
appear at the eventual hearing, and the court heard testimony by
proffer from the Fujas. At the conclusion of the hearing, the court
entered a preliminary injunction forbidding the Adamses from
“performing any work of construction or improvement” on their
property until they had “satisfied the requirements” of the
CC&Rs. The court did not require the Fujas to post any security
in addition to the $5,000 already posted in connection with entry
of the TRO.

¶5 Soon thereafter, the Adamses retained counsel and filed a
motion asking the court to dissolve the preliminary injunction.

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In that motion, the Adamses argued that the injunction had been
incorrectly issued, but they did not assert any specific claim for
damages associated with the injunction, stating only that if the
injunction remained in place, construction would be delayed for
the winter and that “[t]he winter’s delay and exposure [would]
. . . cause [them] economic hardship.” The Adamses also
answered the Fujas’ complaint, but did not file a counterclaim.

¶6 Rather than adjudicating the motion to dissolve the
injunction, the district court suggested putting the case on a fast
track toward a bench trial of the Fujas’ affirmative claims that
the Adamses were violating the CC&Rs. The parties agreed, and
the court scheduled trial for November 2019. In the weeks
leading up to trial, the Adamses submitted initial disclosures in
which they requested reasonable attorney fees and costs, but
stated that they were “not at this time seek[ing] monetary
damages,” and that if they later changed their mind on that
point they would supplement their disclosures. Later, the
Adamses supplemented their disclosures, but that supplement
did not include a request for monetary damages.

¶7 The case proceeded to a bench trial. Following the
Adamses’ opening argument, the court asked if they were
“going to be seeking any damages, monetary damages for the
delay” in the construction of their home, to which counsel
responded, “They are not.” Consistent with this representation,
the Adamses did not present any evidence at trial that they had
sustained monetary damages as a result of the injunction.

¶8 After hearing evidence for two days, followed by closing
arguments, the court announced its decision by telephone
conference. As later memorialized in a written ruling, the court
ultimately found that the Adamses had violated the CC&Rs in at
least one respect, but that the Adamses were “innocent parties”
who had proceeded in good faith. Accordingly, the court
conducted a “balancing of [the] equities,” and concluded that

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any “injury to the [Fujas could] be compensated in damages,”
and that an injunction was therefore unwarranted. On that basis,
the court determined that the preliminary injunction had been
improvidently granted, and that the Adamses had been
“wrongfully restrained and enjoined.” 1 The court vacated the
injunction and ordered the Fujas to pay the Adamses’ reasonable
attorney fees and costs, concluding that, among other bases, rule
65A(c)(2) of the Utah Rules of Civil Procedure authorized the fee
award. At the conclusion of the telephone conference, the court
instructed the Adamses to file “an affidavit of fees and costs”
within fourteen days.

¶9 Fourteen days later, the Adamses filed not only an
affidavit of fees and costs, but also a declaration, accompanied
by numerous exhibits, setting forth over $45,000 in damages they
claimed to have sustained as a result of the injunction. The Fujas
opposed this request on timeliness grounds, pointing out that
the Adamses “did not seek damages in their responsive
pleading, did not assert a counter-claim for monetary damages,
and did not present evidence at the hearing for any of the
damages claimed.” The court quantified the Adamses’
reasonable attorney fees as $72,427.50 and costs as $4,644.93, and
entered judgment against the Fujas in those amounts. But it
refused to award the Adamses any monetary damages

1. For purposes of this opinion, the term “wrongful injunction”
refers simply to a temporary restraining order or preliminary
injunction that is later determined, by the court that originally
issued it, to have been improvidently or incorrectly granted. See
Mountain States Tel. & Tel. Co. v. Atkin, Wright, & Miles, Chartered,
681 P.2d 1258, 1262 (Utah 1984) (“An injunction is wrongfully
issued and recovery on the bond is permissible if it is finally
determined that the applicant was not entitled to the
injunction.”).

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associated with the wrongful injunction, concluding that the
Adamses’ “claim for damages arising from their being
wrongfully enjoined [was] untimely.”

ISSUE AND STANDARD OF REVIEW

¶10 The Adamses appeal, 2 asserting that the district court
erred by denying their claim for wrongful injunction damages,
rooted in rule 65A(c), as untimely. “The interpretation of a rule
of procedure is a question of law that we review for correctness.”
Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 10,
238 P.3d 1035 (quotation simplified); accord Total Restoration Inc.
v. Merritt, 2017 UT App 162, ¶ 6, 405 P.3d 778.

ANALYSIS

¶11 The sole issue presented for our review—whether the
Adamses’ claim for wrongful injunction damages was timely
presented—is governed by rule 65A(c) of the Utah Rules of Civil
Procedure. That rule requires district courts to “condition
issuance” of TROs and preliminary injunctions “on the giving of
security by the applicant, in such sum and form as the court
deems proper, unless it appears that none of the parties will
incur or suffer costs, attorney fees or damage as the result of any
wrongful order or injunction, or unless there exists some other

2. The Fujas were the first to file a notice of appeal, challenging
the district court’s ruling on the merits as well as its order
awarding attorney fees. The Adamses subsequently filed a cross-
appeal, specifically challenging the district court’s determination
that their claim for wrongful injunction damages was untimely.
Later, however, the Fujas voluntarily dismissed their appeal,
leaving only the Adamses’ cross-appeal for our consideration.

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substantial reason for dispensing with the requirement of
security.” Utah R. Civ. P. 65A(c)(1). In this case, the district court
required the Fujas to post a $5,000 cash bond prior to entry of the
TRO, but it did not require additional security prior to entry of
the preliminary injunction. Rule 65A(c) provides, however, that
“[t]he amount of security shall not establish or limit the amount
of costs, . . . reasonable attorney fees . . . , or damages that may
be awarded to a party who is found to have been wrongfully
restrained or enjoined.” Id. R. 65A(c)(2). 3 Indeed, we have
previously stated that, “if it is found that the injunction was
wrongfully issued, the enjoined party has an action for costs and
damages incurred as a result of the wrongfully issued
injunction.” See Utah Telecomm. Open Infrastructure Agency v.
Hogan, 2013 UT App 8, ¶ 21, 294 P.3d 645 (quotation simplified).

3. Under common law principles, wrongful injunction damages
were generally limited to the amount of the bond. See W.R. Grace
& Co. v. Local Union 759, Int’l Union of United Rubber Workers, 461
U.S. 757, 770 n.14 (1983) (applying a common-law—as opposed
to a rules-based—standard, and stating that a “party injured by
the issuance of an injunction later determined to be erroneous
has no action for damages in the absence of a bond”); cf. 42 Am.
Jur. 2d Injunctions § 313 (2021) (explaining that “a person is not
liable in tort or under the common law for damages caused by a
wrongful injunction,” and that liability for such damages can be
had only through a claim upon an injunction bond or for
malicious prosecution (quotation simplified)). However, by its
plain language, rule 65A(c)(2) operates to deviate from these
common-law principles, and allows recovery of damages in
excess of, and even in the absence of, an injunction bond. Indeed,
in this case, the Fujas do not argue that the Adamses’ damages
claim, if timely filed, must be limited to $5,000.

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¶12 Although rule 65A(c) clearly envisions that a party
injured by a wrongful injunction will be able to claim attorney
fees and damages, the rule has relatively little to say about
how—and when—such a claim is to be pursued. What limited
guidance the rule offers is given in the context of discussing the
liability of a surety who has provided a bond, 4 and in that
context the rule provides that “[t]he surety’s liability may be
enforced on motion without the necessity of an independent
action.” Utah R. Civ. P. 65A(c)(3). Our supreme court has stated
that “[t]his language does not preclude a separate action on an
injunction bond,” and also “allows an action on the bond to be
enforced in the action in which it is filed at the option of the
enjoined party.” See Mountain States Tel. & Tel. Co. v. Atkin,
Wright, & Miles, Chartered, 681 P.2d 1258, 1264 (Utah 1984). In
other words, at least in cases involving a third-party surety, rule

4. In some instances, litigants are able to satisfy the “security”
requirements of various rules and statutes by “put[ting] up
[their] own property.” Cf. In re Lockard, 884 F.2d 1171, 1179 (9th
Cir. 1989). But many litigants do not have sufficient financial
resources to satisfy security requirements through use of their
own assets, and therefore require the assistance of a third-party
surety to post a bond on their behalf; in such situations, the
litigant “interposes” a surety between itself and any subsequent
claimants on the bond, and “the surety essentially agrees, in
exchange for the [litigant]’s promise of indemnification” or other
consideration, to pay any damages “out of the surety’s own
funds in an aggregate amount up to the limits of the bond.” See
id.; see also U.S. D.I.D. Corp. v. Windstream Commc’ns, Inc., 775
F.3d 128, 131 n.1 (2d Cir. 2014) (stating that federal rule 65(c)
“employs the term ‘security,’ which includes bonds,” and that,
“[t]ypically, bonds securing [an injunction] are posted by a
surety, while ‘security’ includes amounts deposited directly by
the plaintiff into the court”).

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65A(c) by its terms gives a party aggrieved by a wrongful
injunction a choice: it may file a separate lawsuit for damages, or
it may seek recourse by motion in the same case in which the
injunction was imposed. See id.

¶13 But this case does not involve a third-party surety.
Therefore, the first question we must address is whether the
procedure applicable in cases where a wrongfully enjoined party
is seeking to recover damages from a surety—where the
aggrieved party has the option of filing a separate lawsuit or
addressing the matter by motion—is also applicable in cases
where damages are sought directly from the litigant who
obtained the wrongful injunction. We are unaware of any Utah
case law addressing this question. But the analogous federal rule
of civil procedure includes language substantially similar to that
in Utah rule 65A(c)(3). Compare Fed. R. Civ. P. 65.1 (providing
that a “security provider’s liability may be enforced on motion
without an independent action”), with Utah R. Civ. P. 65A(c)(3).
In situations like this, where Utah authorities do not directly
answer a rules-based question and there is a federal rule with
similar language, we often look to federal authorities for
guidance. See State v. 736 N. Colo. St., 2005 UT 90, ¶ 10 n.4, 127
P.3d 693 (stating that, where “the state and federal rules are
similar and few Utah cases deal with the rule in question,” we
“recognize[] the persuasiveness of federal interpretations” of
that similar rule (quotation simplified)).

¶14 And federal authorities appear to be in agreement that,
“[a]lthough the terms of Rule 65.1 apply only to sureties, . . . that
rule’s procedures” also apply “when imposing liability on a
principal.” See Global NAPs, Inc. v. Verizon New Eng., Inc., 489
F.3d 13, 20 (1st Cir. 2007); see also Coyne-Delany Co. v. Capital Dev.
Board, 717 F.2d 385, 391 (7th Cir. 1983) (stating that “Rule 65.1’s
summary procedure” is, “despite its wording[,] . . . applicable to
the principal as well as the surety on the bond”); U.S. D.I.D.
Corp. v. Windstream Commc’ns, Inc., 916 F. Supp. 2d 501, 507

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(S.D.N.Y. 2013) (stating that, “[a]lthough Rule 65.1 on its face
applies only to a bond posted by a surety, it is well established
that the Rule applies also to bonds posted by a principal”),
vacated and remanded on other grounds, 775 F.3d 128 (2d Cir. 2014);
13 James William Moore et al., Moore’s Federal Practice § 65.1.03
(3d ed. 2021) (stating that, “despite its narrow and literal
wording, the summary procedure of Rule 65.1 is applicable to a
principal as well as a surety on a bond”). Thus, even though the
relevant language of the federal rule appears in a section that, on
its face, discusses only claims involving sureties, courts
consistently apply the procedures set forth in that rule also in
instances where an aggrieved party seeks wrongful injunction
damages from the litigant who bore the obligation to provide
security. We therefore interpret the nearly identical provision
from the Utah rule similarly, and conclude that—even in cases
not involving sureties—a party seeking wrongful injunction
damages under rule 65A(c) may choose to file a separate lawsuit,
or it may seek recourse by motion in the underlying injunction
case. 5

¶15 The next question we must address concerns the issue of
when an aggrieved party must state its claim for wrongful
injunction damages, whether stated against the litigant or
against a surety, and whether brought in the form of an
independent action or a motion within the already-pending
injunction case. In particular, we must determine whether such a
claim must be made prior to the injunction being declared
wrongful, or whether the aggrieved party may wait until after
the injunction is declared wrongful to assert a claim for damages
stemming from the injunction. Rule 65A, by its terms, provides
no specific guidance on this question. The rule indicates only

5. We note that neither party to this appeal advances a contrary
interpretation of Utah rule 65A(c).

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that damages are not available until the injunction “is found to
have been” wrongful, see Utah R. Civ. P. 65A(c)(2), and while
that language is instructive, 6 it does not directly answer the
question at hand. A prohibition on recovery of damages until
after adjudication of wrongfulness does not necessarily imply
freedom to wait to state the claim until after that adjudication.

¶16 But we have already answered this question, albeit in a
slightly different context. In Wright v. Westside Nursery, 787 P.2d
508 (Utah Ct. App. 1990), a plaintiff obtained a preliminary
injunction, and was required to post a bond to secure it. Id. at
510, 515–16. The plaintiff was ultimately successful at trial, and
the court even “specifically affirmed” the injunction order in its
final judgment. Id. at 511, 516. After trial was over, the plaintiff
asked the trial court to “exonerate” the injunction bond—that is,
to return the bond to the plaintiff and prevent any recovery

6. At least one federal court has noted as “important” the past-
tense locution used by the drafters of rule 65(c) of the Federal
Rules of Civil Procedure—the federal counterpart to Utah’s rule
65A(c)(2)—in stating that wrongful injunction damages may be
awarded to a party “‘found to have been wrongfully enjoined or
restrained.’” See NCAA v. Governor of New Jersey, 939 F.3d 597,
605 (3d Cir. 2019) (quoting Fed. R. Civ. P. 65(c)). The court
observed that the rule’s “use of a past tense verb phrase—found
to have been—is important,” and held that, “[b]ecause a court
can only be certain of an enjoined party’s rights after a case has
been fully litigated,” a determination of whether a party was
“‘wrongfully enjoined’ can only be [made] after a final judgment
on the merits.” Id. at 605–06; see also Scott v. Scott, 2017 UT 66,
¶¶ 1, 24, 423 P.3d 1275 (stating that “[a] statutory reading that
credits a verb’s tense is not uncommon,” and holding that the
legislature’s use of the verb “is should mean is and not was or has
been”).

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against it—but the court refused. Id. at 511. On appeal, we held
that the court should have granted the plaintiff’s post-trial
motion to exonerate the bond, once it was “finally determined
that the injunction was proper.” Id. at 516. We first noted the
language of rule 65A(c)(2), which at the time—as quoted in our
opinion—stated that claims for wrongful injunction damages are
available only to parties that are “found to have been wrongfully
enjoined or restrained.” 7 Id. (quotation simplified). And we then
stated that “[a] right of action on [an injunction] bond does not
arise until the court dissolves the injunction or determines that
the injunction should not have been granted.” Id.

¶17 Our conclusion in Wright is also in keeping with the
practical realities of the procedure set forth in rule 65A(c). As
noted, that rule gives aggrieved parties a choice: they may either
file an independent action, or file a motion within the underlying
injunction case. In a procedural regime where filing an
independent action remains an option, parties are, by definition,
not required to litigate claims for wrongful injunction damages
within the context of the already-pending injunction case.
Indeed, we would not want parties filing premature lawsuits for
wrongful injunction damages prior to a ruling, in the underlying

7. The relevant language from the current version of the rule is
nearly identical to the relevant language from the 1990 version,
as quoted in Wright; the only change is that the order of the
terms “restrained” and “enjoined” was apparently switched.
Compare Utah R. Civ. P. 65A(c)(2) (stating that damages are
available to any “party who is found to have been wrongfully
restrained or enjoined”), with Wright v. Westside Nursery, 787
P.2d 508, 516 (Utah Ct. App. 1990) (quoting the language of the
rule then in effect, stating that damages are available to “any
party who is found to have been wrongfully enjoined or
restrained”).

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injunction case, that the injunction in question had in fact been
improvidently granted. And if the “independent action” option
need not be invoked until after a determination of wrongfulness,
it would make little sense to require the “motion” option to be
invoked prior to that point.

¶18 Moreover, our interpretation of Utah rule 65A(c) is, in this
context, congruous with the interpretation given to analogous
federal and state rules. See 11A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 2972 (3d
ed. Oct. 2020 update) (stating that, under the federal rules, a
motion for wrongful injunction damages “will not precede the
final determination on the merits,” and “[i]n the case of an
injunction bond, the claim against the surety does not accrue
until it is finally determined that plaintiff was not entitled to the
restraining order or injunction, or until something occurs that is
the equivalent of a decision on this question”); see also Monroe
Div., Litton Bus. Sys., Inc. v. De Bari, 562 F.2d 30, 33 (10th Cir.
1977) (allowing a litigant to raise a claim for wrongful injunction
damages after the determination of wrongfulness, stating that
prior to that point “the claim for damages had not yet arisen”);
Phoenix Aviation, Inc. v. MNK Enters., Inc., 919 P.2d 348, 352
(Idaho 1996) (interpreting an analogous Idaho rule, and stating
that a “motion for recovery on [an injunction] bond was . . .
premature” when “the merits of the action had not yet been
determined”); Aetna Cas. & Surety Co. v. Bell, 603 P.2d 692, 694
(Nev. 1979) (explaining that, “[g]enerally, in the case of an
injunction bond, the claim against the surety does not accrue
until it is finally determined that the plaintiff was not entitled to
the restraining order or injunction”); cf. 42 Am. Jur. 2d
Injunctions § 317 (2021) (stating that “liability [on the bond] does
not arise, and a cause of action . . . does not accrue, until a final
judgment . . . that the plaintiff was not entitled to the injunction
or that the defendant was wrongfully enjoined” (quotation
simplified)).

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¶19 Ultimately, after examining the text of rule 65A(c), our
statement in Wright, and analogous federal authorities, we hold
that a claim for wrongful injunction damages may be stated, for
the first time, after a court has declared the injunction wrongful,
and that such a claim is not subject to dismissal on timeliness
grounds solely because it was not articulated sooner.

¶20 The Fujas resist this conclusion on two grounds. First,
they call our attention to Fillmore City v. Reeve, 571 P.2d 1316
(Utah 1977), a case in which our supreme court stated that the
opposing party in any claim for wrongful injunction damages is
entitled to “some notice and an opportunity to” respond to the
claim. Id. at 1318. But this statement appears to be tied to
procedural due process concerns regarding the opposing party,
and our holding today is not inconsistent with basic principles of
procedural due process. Of course a respondent in any claim for
wrongful injunction damages is entitled to notice and an
opportunity to be heard in response. But such opportunities can
easily be afforded to a respondent, even if the claim is not made
until after the court determines that the injunction was
improvidently granted. Certainly, if the claim for wrongful
injunction damages is filed in a separate action, the defendant
will be entitled to all procedure that the rules afford. But even if
the claim is brought by motion in the pending case, the
respondent can still be afforded the opportunity to fully respond
and appropriately investigate the claim. Our district courts are
required to afford litigants similar opportunities in various types
of post-judgment proceedings, including proceedings aimed at
quantifying attorney fee awards. See, e.g., Utah R. Civ. P. 64(e)(1),
(2) (allowing courts, in post-judgment proceedings, to join as a
defendant any person claiming an interest in property upon
which a judgment creditor wishes to execute, and stating that
defendants so joined “shall answer within 14 days” and may
“set[] forth any claim or defense”); id. R. 73 (discussing
quantification of attorney fee awards and the responding party’s

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ability to “contest[] the judgment by presenting at a hearing
either evidence or argument”); see also Barker v. Utah Public
Service Comm’n, 970 P.2d 702, 712 (Utah 1998) (“A court must
base attorney fee awards on the evidence and support them by
findings of fact.”). On remand, the Fujas should be given an
opportunity to respond to the Adamses’ claim for wrongful
injunction damages, and it will be up to the district court to
consider, among other things, whether and to what extent
discovery on that claim is appropriate, and whether an
evidentiary hearing will be required to resolve it.

¶21 Second, the Fujas point out that the Adamses not only
failed to file a counterclaim for damages and articulate a claim
for damages in their initial disclosures, but affirmatively
disavowed any claim for damages prior to, and even in the
midst of, the trial. See supra ¶¶ 6–7. We acknowledge that these
facts are at least potentially problematic, 8 but any problems these
facts might engender for the Adamses do not relate to the
question of whether a claim for damages caused by the
injunction must be first stated during the pendency of the
injunction case—the sole ground upon which the district court
dismissed the Adamses’ claim. As discussed above, a claim for
wrongful injunction damages is not untimely merely because it

8. The right to bring any claim for relief, including a claim for
wrongful injunction damages, can of course be curtailed by
equitable doctrines like laches, waiver, and estoppel. See
generally Fundamentalist Church of Jesus Christ of Latter-Day Saints
v. Horne, 2012 UT 66, ¶ 29, 289 P.3d 502 (listing the elements of
laches); IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73,
¶ 16, 196 P.3d 588 (listing the elements of waiver); State v.
Hamilton, 2003 UT 22, ¶ 34, 70 P.3d 111 (listing the elements of
equitable estoppel). We offer no opinion as to whether any of
these doctrines apply here.

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was brought only after the injunction was declared wrongful.
Indeed, a claim for wrongful injunction damages does not accrue
until such a pronouncement (or its equivalent) is made, and a
litigant cannot be said to have brought an untimely claim simply
because the claim was asserted, for the first time, after such a
pronouncement. See supra ¶¶ 15–19. And because a claim for
wrongful injunction damages is not required to be brought prior
to adjudication of wrongfulness, it follows that failure to include
information related to such a claim in one’s pleadings or initial
disclosures filed in the underlying case is not, by itself, a ground
for considering such a claim untimely.

CONCLUSION

¶22 The Adamses’ claim for wrongful injunction damages,
brought for the first time by motion following the district court’s
determination that the injunction had been improvidently
granted, was not untimely. The district court therefore erred by
dismissing the claim on that basis. We reverse the court’s
dismissal of that claim, and remand this matter for further
proceedings consistent with this opinion. 9

9. The Adamses also ask us to award them attorney fees on
appeal. In support of this request, the Adamses cite Osmond Lane
Homeowners Ass’n v. Landrith, 2013 UT App 20, 295 P.3d 704,
wherein we recited the rule that “[a] party who is awarded fees
below and prevails on appeal is entitled to recover its attorney
fees reasonably incurred on appeal.” Id. ¶ 33. While the Adamses
have unquestionably prevailed in this appeal, they were not
awarded attorney fees below on the issue relevant to this appeal.
Indeed, the district court ruled against the Adamses on that
issue, dismissing their claim for wrongful injunction damages,
and we therefore confront that issue only as part of the
(continued…)

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(…continued)
Adamses’ cross-appeal. See supra note 2. Thus, the Adamses are
not entitled to attorney fees on appeal simply by virtue of the
general rule set forth in Osmond Lane. The result of this appeal is
that the Adamses will, on remand, be able to state a new claim
that the district court previously dismissed. Any question
regarding the Adamses’ entitlement to attorney fees on that new
claim has yet to be addressed by the district court. If during
litigation on that claim, the Adamses make, and prevail upon, a
request for attorney fees, they may as part of that request recover
the attorney fees they incurred in this successful appeal. See
Crank v. Utah Judicial Council, 2001 UT 8, ¶ 44 n.18, 20 P.3d 307
(stating that, where “[t]he question of entitlement to fees at the
trial court level has not yet been determined[,] . . . any
appropriate award of attorney fees on appeal is dependent upon
that determination and should be assessed by the district court
on remand”); Thayer v. Thayer, 2016 UT App 146, ¶ 41, 378 P.3d
1232 (stating that, “while wife was not the prevailing party
below, she has succeeded on appeal in obtaining a reversal of the
district court’s order,” and that in such an instance “the district
court on remand should evaluate wife’s request for attorney
fees” and, if it awards her attorney fees, then “the award should
also include wife’s attorney fees reasonably incurred . . . on
appeal” (quotation simplified)).

20200009-CA 16 2021 UT App 55