PC Crane Service, LLC v. McQueen Masonry, Inc.

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

PC Crane Service, LLC, a Utah limited ) OPINION
liability company; Lacy, LLC, a Utah )
limited liability company; David Paul ) Case No. 20090791‐CA
Belcher, Vernon Belcher, and Paul )
David Belcher, individuals, )
) FILED
Plaintiffs, Appellees, and Cross‐ ) (March 1, 2012)
appellants, )
) 2012 UT App 61
v. )
)
McQueen Masonry, Inc., a Utah )
corporation; Central Equipment, LC, a )
Utah limited liability company; )
McQueen Crane Services, LC, a Utah )
limited liability company; and James )
McQueen, an individual, )
)
Defendants, Appellants, and )
Cross‐appellees. )

‐‐‐‐‐

Third District, Salt Lake Department, 060915007
The Honorable Robin W. Reese

Attorneys: Bruce A. Maak, Salt Lake City, for Appellants and Cross‐appellees
Matthew C. Barneck and Paul P. Burghardt, Salt Lake City, for
Appellees and Cross‐appellants

‐‐‐‐‐

Before Judges Voros, Thorne, and Roth.
ROTH, Judge:

¶1 McQueen Masonry, Inc.; Central Equipment, LC; McQueen Crane Services, LC;
and James McQueen (collectively, McQueen) appeal two orders of the district court.
First, McQueen contends that the district court erred in denying its motions for attorney
fees and costs. Second, it argues that the district court’s order that PC Crane Service,
LLC; Lacy, LLC; David Paul Belcher; Vernon Belcher; and Paul David Belcher
(collectively, PC Crane) pay $7475 in sanctions for discovery abuse was inadequate. PC
Crane cross‐appeals the entry of sanctions against it, asserting that the district court
failed to make a finding that sanctions were warranted and that the record itself does
not support the entry of sanctions. PC Crane also asserts that the district court erred in
awarding McQueen its deposition costs both because there were alternative means of
collecting the information and because the depositions were not used at trial. We affirm
the denial of attorney fees and the award of deposition costs but remand for
reconsideration of the sanctions award in accordance with this opinion.

BACKGROUND

¶2 This appeal stems from a dispute over the purchase of goodwill associated with
four construction cranes. In October 2004 and spring 2005, PC Crane, a company
owned by the Belchers, entered into agreements with McQueen to purchase the four
cranes and their associated goodwill (the purchase agreements). Goodwill is generally
defined as “[a] business’s reputation, patronage, and other intangible assets that are
considered when appraising the business.” Black’s Law Dictionary 763 (9th ed. 2009).
The most valuable component of the goodwill here was the customer base. Maintaining
the customer base required the continued association of Lon Stam, a well‐known and
successful crane broker who had negotiated the crane‐hire operations for McQueen, to
attract business for PC Crane after the cranes’ change in ownership. In conjunction with
the purchase agreements, PC Crane executed two promissory notes, one in the amount
of $228,800 and a second in the amount of $132,600, to pay the cost of the goodwill (the
goodwill notes).1 Each goodwill note provided for monthly installment payments to be
paid over a three‐year period, followed by a lump sum payment of the balance. Both
notes were secured by a deed of trust to real property owned by Lacy, LLC and were

1. The second goodwill note actually promised payment of $177,600, of which $132,600
was designated for the goodwill.

20090791‐CA 2
personally guaranteed by Lacy, LLC; David Belcher; and Vernon Belcher (collectively,
Guarantors).

¶3 PC Crane filed this lawsuit in September 2006. In the complaint, PC Crane
asserted that McQueen failed to deliver the goodwill contemplated in the purchase
agreements. As a consequence, PC Crane sought to recover payments made under the
goodwill notes and to terminate its continuing obligations under the notes and the
purchase agreements. During the course of the litigation, PC Crane continued to make
timely payments under the goodwill notes until October 2007, when the lump sum
payment of $123,379.74 required by the first note came due. In November 2007,
however, the parties entered into a stipulation under which PC Crane agreed to
continue paying its monthly installments on the second goodwill note and McQueen
agreed that the lump sum payments due under both notes would be deferred until final
resolution of this case. As part of the stipulation, McQueen also agreed “to stay any
action to . . . enforce, collect, or otherwise declare [PC Crane] . . . in default of [its]
obligations under the [goodwill n]ote[s]” while the litigation was pending. On August
27, 2008, approximately two months prior to trial, PC Crane paid in full the remaining
balance on both notes.2 A jury eventually resolved all of the claims in McQueen’s favor,
and neither party challenges the jury verdict on appeal. Rather, the parties are
concerned with the district court’s orders on post‐trial motions for attorney fees,
sanctions, and deposition costs.

¶4 Following the jury trial, McQueen moved to disqualify Judge L.A. Dever, who
had presided over the case to that date. Judge Dever granted the motion, and the case
was reassigned to Judge Robin W. Reese. Judge Reese’s only role in the litigation was
to decide McQueen’s post‐trial motions, which included two motions for attorney fees
under the contracts; its second motion for discovery‐related sanctions, which had been
filed before trial but never resolved; and its motion for costs. Judge Reese denied the
motions for attorney fees because he concluded that a precondition to the collection of
attorney fees‐‐a default‐‐had never occurred under the terms of any of the documents.
McQueen’s second motion for sanctions asked the court to award sanctions against PC
Crane for conduct during discovery that had formed the subject of McQueen’s first
motion for sanctions, which Judge Dever did not grant because, “at th[e] time,” neither
party’s conduct appeared to warrant sanctions, and for subsequent pretrial conduct.

2. PC Crane paid off the notes prior to the entry of final judgment in exchange for
McQueen’s release of its security interest in the real property and reconveyance of the
deed of trust.

20090791‐CA 3
McQueen characterized Judge Dever’s earlier refusal to award sanctions “at this time”
as a deferral of a final decision on the sanctions issue pending further proceedings, but
Judge Reese concluded that Judge Dever had denied McQueen’s previous request for
sanctions, and he declined to disturb that decision. However, Judge Reese awarded
sanctions against PC Crane for its subsequent conduct, based on his determination that
in response to McQueen’s repeated requests for relevant information, PC Crane took an
“inconsistent[]” position on an issue that was central to McQueen’s defense and
stymied the discovery of information that should have been revealed much earlier in
the discovery process. Therefore, he awarded McQueen its fees incurred in bringing the
second sanctions motion‐‐$7475. Finally, Judge Reese allowed McQueen to recover
certain deposition expenses as costs under rule 54(d) of the Utah Rules of Civil
Procedure.

¶5 On appeal, McQueen asserts that Judge Reese erred in denying its motions for
contractual attorney fees and that the sanctions award did not adequately compensate it
for the tens of thousands of dollars it spent combating PC Crane’s discovery abuse. PC
Crane challenges the sanctions award as unsupported both because Judge Reese failed
to make a finding that PC Crane’s behavior in fact warranted sanctions and because the
record demonstrates that its behavior was not sanctionable. PC Crane also cross‐
appeals the award of deposition costs, arguing that the award was unwarranted
because the depositions were unnecessary and were not used during trial.

ISSUES AND STANDARDS OF REVIEW

¶6 McQueen appeals the denial of its request for attorney fees, arguing that it is
entitled to attorney fees under the goodwill notes, the deed of trust, and the guaranty.
We review the denial of an award of attorney fees as a matter of law for correctness. See
EDSA/Cloward, LLC v. Klibanoff, 2008 UT App 284, ¶ 8, 192 P.3d 296. Because we are
reviewing the denial of fees under contract, we must also review the district court’s
interpretation of the contract language for correctness. See Encon Utah, LLC v. Fluor
Ames Kraemer, LLC, 2009 UT 7, ¶ 11, 210 P.3d 263.

¶7 Both parties challenge the district court’s award of $7475 in discovery sanctions.
When reviewing the imposition of sanctions under rules 37 and 26 of the Utah Rules of
Civil Procedure, appellate courts first consider whether “the district court has made a
factual finding that the party’s behavior merits sanctions.” Kilpatrick v. Bullough
Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (considering when rule 37 sanctions may
be imposed); see also Utah R. Civ. P. 26(g) (requiring sanctions if the court finds that a

20090791‐CA 4
certification upon a discovery response is made in violation of the rule). We will
uphold any such finding unless it is clearly erroneous. See Chen v. Stewart, 2004 UT 82,
¶ 19, 100 P.3d 1177. If such a finding has been made, we will not disturb the amount of
the sanction unless “abuse of discretion [is] clearly shown.” See Kilpatrick, 2008 UT 82,
¶ 23 (alteration in original) (emphasis omitted) (internal quotation marks omitted)
(discussing rule 37); accord Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933
(discussing rule 26). “An abuse of discretion may be demonstrated by showing that the
district court relied on ‘an erroneous conclusion of law’ or that there was ‘no
evidentiary basis for the trial court’s ruling.’” Kilpatrick, 2008 UT 82, ¶ 23 (quoting
Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997)).

¶8 Finally, PC Crane challenges the award of deposition costs to McQueen. We
review the district court’s decision awarding costs to the prevailing party for abuse of
discretion. See Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶¶ 78, 84, 201 P.3d 966.

ANALYSIS

I. Attorney Fees

¶9 McQueen argues that the district court improperly denied its requests for
attorney fees. In Utah, a district court generally may not award attorney fees unless
provided for by contract or statute. See IHC Health Servs., Inc. v. D&K Mgmt., Inc., 2008
UT 73, ¶ 39, 196 P.3d 588. When awarded pursuant to a contract, attorney fees are
“allowed only in accordance with the terms of the contract.” Turtle Mgmt., Inc. v. Haggis
Mgmt., Inc., 645 P.2d 667, 671 (Utah 1982). Thus, the party “seeking an award of
attorney fees under a contract must establish that the contract’s terms anticipate such an
award.” Maynard v. Wharton, 912 P.2d 446, 451 (Utah Ct. App. 1996). In this case, the
pertinent contractual documents involved in the crane transaction were the purchase
agreements, the goodwill notes, the deed of trust, and the guaranty. The parties agree
that neither of the purchase agreements contains an attorney fee provision. McQueen
therefore sought an award of attorney fees under the attorney fee provisions of the
other documents, all of which McQueen claims were implicated by PC Crane’s legal
efforts to rescind its obligation to pay for the goodwill and to recover payments
previously made. The trial court declined to award fees under those documents,
concluding that none of the fee provisions were applicable under the facts of the case.
McQueen asserts that this conclusion was error.
¶10 McQueen also now seeks attorney fees pursuant to Utah Code section 78B‐5‐826
(the reciprocal attorney fees statute), which permits a court to award “attorney fees to

20090791‐CA 5
either party that prevails in a civil action based upon any promissory note, written
contract, or writing . . . when the provisions of the promissory note, written contract, or
other writing allow at least one party to recover attorney fees,” Utah Code Ann. § 78B‐5‐
826 (2008). Although McQueen did not raise this issue in the district court, it asserts
that this court’s recent decision of Hooban v. Unicity International, Inc., 2009 UT App 287,
220 P.3d 485 (mem.), cert. granted, 225 P.3d 880 (Utah Jan. 20, 2010) (No. 20090932),
which was decided after the denial of attorney fees in the present case, creates a new
basis for its request for statutory attorney fees.

¶11 We first address McQueen’s contractual claims and then turn to its statutory
claim for attorney fees.

A. Contractual Fees

¶12 Much of the discussion in the briefs and at oral argument centers on which of the
six written agreements entered into by the parties‐‐the two purchase agreements, the
two goodwill notes, the deed of trust, and the guaranty‐‐were actually at issue in the
2006 litigation and could thus theoretically provide a basis for an award of attorney
fees. PC Crane asserts that the underlying dispute involved only a claim of breach of
the purchase agreements, which undisputedly do not contain any attorney fee
provisions. According to McQueen, however, PC Crane’s legal efforts to rescind its
obligation to pay for the goodwill and to recover payments already made implicated all
six agreements. Because the purchase agreements do not allow for the collection of
attorney fees, McQueen sought to recover its attorney fees pursuant to the other four
documents.

¶13 We agree with McQueen that the scope of the litigation reasonably extends to the
two goodwill notes and the deed of trust because they implement and secure PC
Crane’s obligations to pay for the disputed goodwill and all three documents are
incorporated by reference into the purchase agreements. We therefore must consider
whether the district court properly concluded that attorney fees were not available to
McQueen under any of those documents. With regard to the guaranty, however, we
determine that the litigation was too tenuously and tangentially related to it to trigger
its attorney fee provision.

20090791‐CA 6
 1. The Goodwill Notes

¶14 PC Crane executed two goodwill notes, which covered the purchase price of the
goodwill associated with the cranes. Both notes are incorporated by reference into the
purchase agreements. They also contain identical attorney fee provisions, which are
found in the “Remedies” section of each note:

3. Remedies. In the event of a default under this Promissory
Note, [McQueen], at its option, may take any one or more of
the following actions:

3.1. Acceleration and Legal Action. Declare the entire
unpaid principal balance of the debt . . . and all interest on
such debt and all other costs and expenses . . . to be
immediately due and payable . . . and commence legal action
for collection and enforcement of the Promissory Note,
including all costs and reasonable attorney[] fees incurred in
connection therewith.

(Emphases added.) The notes each provide that “[a] default shall occur under this
Promissory Note if” (1) PC Crane “fails to make any payment” under the note; (2) PC
Crane becomes insolvent or files for bankruptcy; (3) PC Crane fails to make payment
due “under any other promissory note” held by McQueen within fifteen days of written
notice; or (4) a default occurs under either the deed of trust or the security agreement.3

¶15 McQueen does not challenge the district court’s finding that none of the specific
events identified as a default in the goodwill notes had occurred.4 Rather, it argues that

3. The parties executed a separate security agreement to secure the payment of the
goodwill notes and certain other notes. That security agreement does not contain an
attorney fee provision and is not at issue in this appeal.

4. A payment default actually did occur in October 2007 when PC Crane failed to make
the lump sum payment due on the first goodwill note. The district court, however,
considered, and rejected, an argument that McQueen was entitled to attorney fees based
on this default. Although the court recognized the failure to make the payment as an
act of default under the documents, it determined that McQueen had “waived any right
(continued...)

20090791‐CA 7
PC Crane’s payment of the note obligations to avoid default, followed by a suit to
recover those payments and avoid future payments, was the practical equivalent of
“Failure to Make Payments” and that the district court erred in concluding that it was
not. According to McQueen, “there is no difference in substance between a refusal to
make a payment and the making of a payment and suing for its recovery,” and the
court’s decision otherwise would simply allow PC Crane to “avoid its liability for legal
fees.” While this equivalency argument has some appeal, in that the result of both a
failure to pay and a declaratory judgment that the notes were unenforceable would be
the same‐‐nonpayment‐‐the language of the goodwill notes themselves does not
support it. By linking McQueen’s entitlement to attorney fees to an event of default and
then specifically delimiting such events of default, the parties plainly expressed their
intent to limit the attorney fees trigger to an actual default, not to the functional
equivalent of a default. That is, McQueen is entitled to collect attorney fees “incurred in
connection” with any “legal action for collection and enforcement of the Promissory
Note,” but only “[i]n the event of a default”‐‐in this instance, a “Failure to Make
Payments.”

¶16 “When a contract requires, as this one does, that the defaulting party pay
attorney fees, ‘the sole criterion for [a party] to obtain attorney fees . . . is to show
default by the other contract party.’” Jones v. Riche, 2009 UT App 196, ¶ 3, 216 P.3d 357
(mem.) (alteration and omission in original) (quoting Foote v. Clark, 962 P.2d 52, 54‐55
(Utah 1998)). Default, however, must have occurred “in accordance with the terms of
the contract.” Turtle Mgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d 667, 671 (Utah 1982); see
also IHC Health Servs., Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 39, 196 P.3d 588 (“Fees
provided for by contract . . . are allowed only in strict accordance with the terms of the
contract.”). Thus, McQueen “must establish that the contract’s terms anticipate such an
award.” Maynard v. Wharton, 912 P.2d 446, 451 (Utah Ct. App. 1996); cf. IHC Health
Servs., Inc., 2008 UT 73, ¶ 43 (reversing award of attorney fees where action to eject a
tenant after the plaintiff had terminated the lease was not instituted during the term of
the lease, as required by the lease’s attorney fee provision); Cottonwood Mall Co. v. Sine,
830 P.2d 266, 267, 269 (Utah 1992) (declining to award attorney fees associated with

4. (...continued)
to act upon [PC Crane’s] default” when it had agreed, in a November 2007 stipulation,
to “stay any action to foreclose, enforce, collect, or otherwise declare [PC Crane] . . . in
default of [its] obligations under the [goodwill notes].” McQueen does not challenge
this determination, and we therefore must accept that the parties’ stipulation eliminated
the October 2007 default.

20090791‐CA 8
collecting rent for a holdover period after the lease expired because the lease expressly
permitted attorney fees only for the collection of rent under the lease). McQueen cannot
do so here. Though McQueen would not be fully paid under the notes in either
instance, the distinction between obtaining a declaration that there is no legal obligation
to pay under a contract and simply failing to make the required payments under that
contract is a real one; only the latter instance is a default as the notes define that term.

¶17 The supreme court resolved a similar issue in the case of Faulkner v. Farnsworth,
714 P.2d 1149 (Utah 1986) (per curiam). There, the buyers had purchased real property
from the sellers and were making payments on the purchase price. See id. at 1150. The
sellers, however, still owed money to their predecessor‐in‐interest on the same
property. See id. Once the buyers had paid down the balance to an amount equal to
what the sellers owed their predecessor, the buyers demanded that the sellers convey
title to them. See id. A jury found in favor of the sellers, and the trial court awarded
attorney fees under the purchase contract to them. See id. The contract, however,
provided for attorney fees only in the event of default. See id. The supreme court noted
that the buyers “were current in their payments” and, therefore, not in default. See id.
Consequently, it reversed the trial court’s award of attorney fees, stating, “The
contractual language does not award attorney fees to the prevailing party who succeeds
in enforcing the agreement, but against the defaulting party whose default necessitates
enforcement. As neither party was held in default, neither was entitled to attorney
fees.” Id. at 1151. See also B. Inv. LC v. Anderson, 2012 UT App 24, ¶¶ 31, 33, 700 Utah
Adv. Rep. 51 (affirming the denial of attorney fees to a party who prevailed in the trial
court because the action for declaratory judgment did not result in the “failure to
comply with any of the [contract] provisions,” a prerequisite for collecting attorney fees
(internal quotation marks omitted)).

¶18 The bargain that the parties struck in the goodwill notes provided PC Crane with
the ability to challenge the enforceability of its payment obligations in court without the
risk that it would be required to pay McQueen’s attorney fees should it lose, so long as
PC Crane did not commit a default under the notes while it did so. Although the result
may seem unfair from McQueen’s perspective, we cannot reform the parties’
agreements to insert provisions that, in hindsight, might seem desirable or even
reasonable. See generally Rio Algom Corp. v. Jimco, Ltd., 618 P.2d 497, 505 (Utah 1980)
(holding that a court cannot interpret a contract in a manner that makes a better contract
than the parties bargained for themselves). Here, because the goodwill notes limit an
award of attorney fees only to the occurrence of specific events of default, and
McQueen has not shown that any such default occurred here, we conclude that the

20090791‐CA 9
district court did not err when it refused to award attorney fees to McQueen under the
goodwill notes.

2. Deed of Trust

¶19 McQueen also seeks to recover attorney fees under the deed of trust. The deed of
trust secures PC Crane’s obligations under the goodwill notes by providing a security
interest in real property owned by Lacy, LLC, another entity held by the Belchers. The
“Remedies” provision of the deed of trust, however, is conditioned in much the same
way as are the goodwill notes, in that the prerequisite for the remedies it provides,
including attorney fees, is PC Crane’s default on its obligations under the notes or
under the deed of trust itself:

Should Trustor fail to make any payment or to do any act as herein
provided, then . . . [McQueen] may: . . . commence, appear in
and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of [McQueen] . . . ; and in
exercising any such powers, incur any liability, expend
whatever amounts in its absolute discretion it may deem
necessary therefor, including costs of evidence of title,
employ counsel, and pay counsel’s reasonable fees.

(Emphases added.) The deed of trust includes an “Events of Default” section that
seems to describe what would amount to a failure “to do any act as herein provided.”
Such events include failure “to pay or perform any obligation or agreement secured
hereby,” including the goodwill notes; failure “to perform and discharge fully and
timely any obligation or agreement required in this Deed of Trust”; and Lacy, LLC’s
insolvency or bankruptcy.

¶20 In arguing that the district court erroneously denied an award of attorney fees
contemplated by the deed of trust, McQueen focuses on the language “defend any
action or proceeding purporting to affect the security hereof or the rights or powers of
[McQueen],” contending that it was forced to do just that in its successful defense
against PC Crane in this action. McQueen’s argument, however, bypasses the
provision’s introductory language, which preconditions the payment of attorney fees on
the “fail[ure] to make any payment or to do any act as herein provided” or, in other
words, a default under either the deed of trust or the goodwill notes. McQueen does
not claim that any of the identified events of default occurred. Our analysis of the
attorney fees and default provisions of the goodwill notes, see supra ¶¶ 14‐18, therefore

20090791‐CA 10
applies equally to the equivalent provisions of the deed of trust. For the reasons stated
there, we conclude that PC Crane’s suit to rescind the contracts and recover its
payments plainly does not amount to an event of default that triggers the award of
attorney fees under the deed of trust.5 See Turtle Mgmt., 645 P.2d at 671 (allowing
attorney fees only in strict compliance with the contractual terms). Accordingly, we
affirm the denial of attorney fees pursuant to the deed of trust.

3. The Guaranty

¶21 The guaranty ensures payment to McQueen of the second goodwill note and
“any other debt or obligation of [PC Crane].” According to its terms, the Guarantors
“agree[] to jointly and severally pay all reasonable attorney fees and costs necessary for
the enforcement of this Guaranty.” (Emphasis added.) McQueen argues that it expended
attorney fees to enforce the guaranty when it defended against PC Crane’s claim that
McQueen breached the purchase agreements. The guaranty, however, does not purport
to warrant the validity of the underlying obligations; rather, it only promises payment
in the event that PC Crane does not pay any amounts actually owed to McQueen
pursuant to the underlying documents: “[T]he undersigned [G]uarantors . . . guarantee
to [McQueen] the prompt and full payment of all sums now or hereinafter due pursuant to
said Notes or otherwise due [McQueen] by [PC Crane] pursuant to the Notes and any
other debt or obligation of [PC Crane] . . . .” (Emphases added.) Further, these
guaranty obligations are triggered only “[i]n the event of default” on PC Crane’s
obligations to McQueen. Consequently, in the absence of a defined default, a suit by PC
Crane to have the underlying debt declared unenforceable, while it may ultimately
threaten McQueen’s ability to collect on the notes, does not trigger any obligation or
require any action by the Guarantors. If the debt is declared legitimate, then the
guaranty provides McQueen with a safeguard against nonpayment of the notes by PC
Crane. On the other hand, if the debt is declared unenforceable, there is no remaining
obligation “pursuant to” which the Guarantors can be held to account. We therefore
conclude that the attorney fees and costs McQueen has incurred in its defense against
PC Crane’s breach of contract claim are not “necessary for the enforcement of th[e]

5. Because we agree with the district court that a condition precedent to an award of
attorney fees‐‐an event of default‐‐did not occur, we do not consider McQueen’s
argument that the district court also wrongly decided that PC Crane’s actions did not
“affect the security [of the deed of trust] or the rights or powers of [McQueen]” as
required to trigger the payout clause of the remedies provision.

20090791‐CA 11
Guaranty.”6 As a result, we affirm the district court’s denial of McQueen’s request for
attorney fees under the guaranty.

B. Statutory Fees

¶22 McQueen also requests attorney fees under the reciprocal attorney fees statute.
See Utah Code Ann. § 78B‐5‐826 (2008). Because McQueen did not request statutory
fees in the district court, the issue is not preserved for appeal. See generally O’Dea v.
Olea, 2009 UT 46, ¶ 20, 217 P.3d 704 (stating that, in the absence of certain exceptions, an
appellate court will not review an issue of which the trial court was not alerted and
provided an opportunity to consider). McQueen asserts that this court’s subsequently‐
issued decision of Hooban v. Unicity International, Inc., 2009 UT App 287, 220 P.3d 485
(mem.), cert. granted, 225 P.3d 880 (Utah Jan. 20, 2010) (No. 20090932), sheds new light
on the statute and that we therefore ought to consider the matter even though it was not
raised below. Whether or not Hooban changes the way in which the statute has been
viewed, however, we do not believe that the case supports McQueen’s position.

¶23 Even if Hooban’s broad language establishes a new or different basis for
McQueen to assert that it is eligible for statutory attorney fees, nothing in Hooban, our
previous case law, or the statute itself permits a party to recover fees beyond those
provided for by the contract’s terms. Indeed, the purpose of the reciprocal attorney fees
statute is to eliminate “‘unequal exposure to the risk of contractual liability for attorney
fees.’” Id. ¶ 11 n.3 (quoting Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶¶ 76‐77, 201
P.3d 966); see also Bilanzich v. Lonetti, 2007 UT 26, ¶ 18, 160 P.3d 1041 (noting that the
reciprocal attorney fees statute “was designed to create a level playing field for parties
to a contractual dispute” (internal quotation marks omitted)). The net effect of the
reciprocal attorney fees statute, therefore, is to “ensure that both parties are subject to

6. In a footnote to supplemental briefing requested by this court on the issue, McQueen
points out that David Belcher and Vernon Belcher were individually named as plaintiffs
in the underlying action when their only relationship to the transaction is as
Guarantors. McQueen implies that the inclusion of David and Vernon Belcher as
plaintiffs in this litigation therefore indicates that the guaranty was an issue in the
underlying suit. McQueen further asserts that even if the applicability of the guaranty
was not raised by the pleadings, its applicability was tried by consent. Even accepting
McQueen’s contentions, the guaranty (by its terms) is only implicated when enforceable
obligations under the goodwill notes are not satisfied, a condition that we determine
was not met in the context of this litigation.

20090791‐CA 12
the [contractual] attorney fee provision.” See Giusti, 2009 UT 2, ¶ 77; accord Bilanzich,
2007 UT 26, ¶ 19 (“[I]n order to further the statute’s purpose [of eliminating unequal
risk], the exposure to the risk of a contractual obligation to pay attorney fees must give
rise to a corresponding risk of a statutory obligation to pay fees.” (emphasis added)).
Accordingly, the statute affords to the party not benefitted by a contractual attorney fee
provision the same access to attorney fees that the provision explicitly affords to the
other party. The statute does not create an independent right to a fee award that the
contract’s attorney fee provision would not allow to either party simply because the fee
provision is one‐sided. Because we have previously decided that neither the notes nor
the deed of trust provide for an award of attorney fees in the absence of a default, we
decline to accept, on the same basis, McQueen’s claim that it is entitled to fees under the
statute, and we see nothing in Hooban that would change this.

II. Sanctions

¶24 The second matter for our review is the district court’s sanctions award against
PC Crane in the amount of $7475. McQueen asserts that the award was insufficient
because it had “expended multiple tens of thousands of dollars in legal fees” during
discovery to obtain disclosure from PC Crane of a significant fact that should have been
revealed much earlier and the award of $7475 compensated it for only a small fraction
of its expenses. PC Crane cross‐appeals, claiming that the award was not supported by
a factual finding that sanctions were warranted under either rule 37 or rule 26 of the
Utah Rules of Civil Procedure and that the record did not support the imposition of
sanctions in any case.

A. The Relevant Proceedings

¶25 The central tenet of McQueen’s defense to PC Crane’s claim that McQueen failed
to provide the agreed‐upon goodwill was that it did, in fact, comply with the terms of
their agreement. According to PC Crane, McQueen failed to adequately pass on its
customer base, an essential component of which was the continued association of Lon
Stam, the crane broker who had successfully negotiated the crane‐hire operations for
McQueen. McQueen disagreed. Specifically, McQueen asserted not only that it had
informed PC Crane of its relationship with Stam and provided PC Crane with Stam’s
contact information but also that PC Crane had entered into a mutually‐valuable
working relationship with Stam by the time PC Crane purchased the fourth crane in
spring 2005. Many of McQueen’s discovery requests were therefore focused on
obtaining information pertinent to the contacts and working relationship between PC
Crane and Stam during the relevant time period.

20090791‐CA 13
¶26 In November 2006 and April 2007, McQueen served PC Crane with its first and
second set of interrogatories and requests for production of documents, seeking, among
other things, telephone numbers for Stam and compensation agreements between PC
Crane and Stam. PC Crane responded to the request for the compensation agreements
by admitting that PC Crane and Stam had worked out an arrangement but contended
that their agreement was made after the execution of the last crane purchase agreement
with McQueen in spring 2005. PC Crane represented that it did not have any
documentation of the agreement with Stam, despite earlier statements to the contrary
by Stam, David Belcher, and Paul Belcher. With respect to the request for Stam’s
telephone numbers, PC Crane refused to provide them on the basis that Stam was not a
party to the case. McQueen then filed its first motion to compel in July 2007.7

¶27 In the meantime, McQueen had obtained a copy of a 2006 bank financing
application (the 2006 bank application), in which PC Crane represented to the bank that
it had collaborated with Stam on substantial crane‐related projects, including one that
had produced substantially increased revenue for one of the cranes purchased from
McQueen:

In our efforts to build a strong marketing position we
searched out one of the most well connected crane brokers in
the region[, Lon Stam]. . . . Lon Stam has provided a high
level of credibility to our crane company. . . .

One of the operational designs that we and Lon
collaborated on was in the building of a custom designed
trailer that gives us the ability to use our 300 ton hydraulic
Liebherr crane as either a 300 ton crane or a 165 ton crane.
This is the primary reason for the drastic increase in the
annual revenue production of this machine. The 300 ton
crane alone reached a usage rate of 73% compared to a 21%

7. After McQueen filed the first motion to compel, PC Crane provided McQueen with
most, but not all, of Stam’s telephone numbers and indicated that his mobile phone
provider was AT&T, which was incorrect. PC Crane stated at the motion hearing that
Stam had informed it that his carrier was AT&T and that it did not have any records
that showed otherwise. The request for Stam’s telephone numbers is not at issue here.

20090791‐CA 14
 usage rate in 2004 resulting in a 71% increase in this crane’s
annual revenue generation.

....

The crawler cranes are the next business endeavor
that we are collaborating with Lon to undertake. The
opportunity to purchase the crawlers came via Lon through
a long time business associate Gordon Olsen.

(Emphasis added.) Based on the statements in the 2006 bank application, McQueen
served PC Crane with a third set of interrogatories focused on the referenced trailer
collaboration with Stam. The ultimate goal of these interrogatories was to determine
whether the “custom designed trailer” project implicated a relationship between Stam
and PC Crane during the relevant time period. Among other things, McQueen asked
PC Crane to “[i]dentify (by name, address, and telephone number) each person who
participated in the design or construction of the [custom designed] Trailer [referenced
in the 2006 bank application] an[d], as to each, reasonably describe what he or she did
concerning the Trailer.” McQueen also asked PC Crane to “[s]tate the date construction
of the Trailer began, the date construction of the Trailer ended, and the date upon which
application was made to license the Trailer.” PC Crane objected that the request was
“overly broad” and “unduly burdensome” and sought “information that is not relevant
and not likely to lead to admissible evidence.” PC Crane then refused to provide any
answer to the interrogatory. As a result, on August 10, 2007, McQueen filed a second
motion to compel, which PC Crane opposed on the basis that “McQueen asks the Court
to compel the disclosure of information which . . . relates to events that occurred outside
of the relevant discovery [time period] in this action [of October 2004 to spring 2005].”

¶28 At a combined hearing on the two motions to compel held on September 5, 2007,
McQueen produced the 2006 bank application and argued that it demonstrated that PC
Crane had collaborated with Stam in spring 2005. PC Crane again denied the relevance
of the referenced trailer modification, stating that it had previously “certified in a letter[
that] this collaboration occurred much after the purchase of the fourth crane in April of
2005. It was well into the year 2006.” Counsel reiterated that it had no documentation
during the relevant time period because the “trailer wasn’t even conceived of until the
year 2006 between Stam and the Belchers. . . , a year and a half after they purchased the
first [three] cranes.” Following argument, Judge Dever ordered that PC Crane produce
“any documents prior to December of ‘05 relating to the design or construction of th[e]
trailer [modification referenced in the 2006 bank application].” Judge Dever denied

20090791‐CA 15
McQueen’s requests for attorney fees associated with bringing the motions. On
November 1, 2007, PC Crane answered the pertinent discovery requests, stating that it
“ha[d] no responsive documents.”

¶29 McQueen then procured independent evidence that verified that PC Crane had
modified a drop‐deck trailer in spring 2005. McQueen also presented a document that
it claimed demonstrated that PC Crane had completed the crawler cranes business
endeavor referenced in the 2006 bank application in December 2005. Relying on PC
Crane’s statements in the bank application that the crawler cranes endeavor had
occurred subsequent to the trailer modification collaboration, McQueen inferred that
the trailer modification that occurred in spring 2005 was the one referenced in the 2006
bank application, contrary to PC Crane’s assertion that this PC Crane‐Stam
collaboration did not occur until 2006. Accordingly, McQueen sent PC Crane a fourth
set of interrogatories seeking “identif[ication of] each drop‐deck trailer owned by PC
Crane at any time between October 15, 2004 and December 31, 2005,” and a “state[ment
of] whether this trailer was or was not that certain custom designed trailer [referenced
in the 2006 bank application].” PC Crane again objected that the information sought
was overly broad, unduly burdensome, irrelevant, and “outside the scope of discovery
authorized by the [district c]ourt” in its earlier order. As before, PC Crane declined to
answer the interrogatories. On December 13, 2007, McQueen filed a third motion to
compel and its first motion for sanctions. The motion to compel sought an order
compelling PC Crane “to produce all documents relating to the acquisition, design,
modification, licensing, or permitting of any trailer owned by PC [Crane] between
October 2004 and [December 2007].” The supporting memorandum narrowed the
breadth of the request, indicating that McQueen was particularly interested in the
custom designed trailer referenced in the 2006 bank application, which it believed had
been modified in collaboration with Stam in spring 2005 and was seeking documents
showing its modification date. McQueen’s motion for sanctions requested all attorney
fees incurred in bringing the three motions to compel and the motion for sanctions
itself.

¶30 At a hearing held on March 4, 2008, McQueen supported its third motion to
compel and its first motion for sanctions with a copy it had obtained of a March 2005
loan disbursement form that showed that PC Crane had received money to repair or
build a drop‐deck trailer, similar to the one referenced in the 2006 bank application. PC
Crane asserted, however, that the modification done in March 2005 was “for a different
crane . . . for the 165[‐ton] Liebherr[, not] . . . the 300” and that “Vern[on] Belcher did
this one on his own.” PC Crane maintained that the trailer modification collaboration
referenced in the 2006 bank application did not occur in 2005:

20090791‐CA 16
 [T]he Court said, in its order . . . [that PC Crane is to produce
a]ll documents created prior to December 2005 concerning
the design, production, manufacture or construction of that
certain custom designed trailer [referenced in the 2006 bank
application].

Your Honor, there aren’t any documents. And
Counsel can believe there are until the cows come home, but
that won’t create documents that don’t exist. Did [PC Crane
and Stam] collaborate? Yes, they did. What was the timing
of that collaboration? I don’t know. I don’t agree with
Counsel’s assertion that because the next paragraph [of the
2006 bank application] says the next business endeavor[, the
crawler cranes, which was completed in December 2005,]
means that it was the next one in chronological order[.] I
don’t know what they meant by that. But they did
collaborate and there just aren’t any documents.

In a bench ruling, Judge Dever ordered PC Crane to “produce documents reflecting
work done during the period of October 1, 2004 through December 31, 2005 to modify
any drop‐deck trailers owned by [PC Crane]” and permitted McQueen to redepose the
Belchers for the limited purpose of inquiring about “work done between October 1,
2004 and December 31, 2005 to modify any drop‐deck trailer owned by [PC Crane].”
(Emphases added.) The judge, however, “denie[d] at this time [McQueen’s] request for
attorney fees and other sanctions.” (Emphasis added.)

¶31 Three weeks after the hearing, however, on March 26, 2008, PC Crane sent
McQueen a letter in which it asserted for the first time that the “trailer mentioned in
[the bank] documents was never actually built.”8 In other words, PC Crane disclosed
for the first time that the trailer modification that it had described in such positive terms
in the 2006 bank application and whose chronological relevance had been so central to
the arguments of the parties at the hearings on the motions to compel had never

8. It is not clear from the record whether PC Crane actually possessed and simply had
never modified the trailer that it claimed, in the bank application and throughout the
underlying discovery proceedings, to have modified or whether it never owned the
trailer at all. For simplicity, we will refer to the trailer “modification” as never having
occurred.

20090791‐CA 17
actually occurred, other than conceptually. McQueen again moved for sanctions,
arguing that because the trailer modification it had sought information on for months at
such cost had now proved to be nonexistent all along, PC Crane had misrepresented
material facts, disobeyed discovery orders, and filed baseless objections to discovery
requests in violation of rule 37 and rule 26 of the Utah Rules of Civil Procedure. Judge
Dever never considered this motion; rather, it was resolved post‐trial by Judge Reese
after Judge Dever was disqualified on McQueen’s motion. Judge Reese granted the
motion, but limited the sanctions to $7475, the amount of McQueen’s attorney fees
associated with bringing the second motion for sanctions. The stated basis for the
decision to grant sanctions was that PC Crane’s “position . . . that the trailer
[modification] had never been built[] was inconsistent with [its] previous position that
the trailer existed [but had been modified at a later date].” (Emphasis added.) Judge
Reese declined, however, to disturb or reconsider Judge Dever’s earlier denial of
McQueen’s requests for fees or other sanctions, limiting the award of attorney fees to
the sanctions motion itself.

B. The Entry of Sanctions

¶32 In reviewing the imposition of sanctions under rule 37 and rule 26, this court has
traditionally applied a two‐part approach.9 First, we consider whether the district court
was justified in ordering sanctions. See generally Kilpatrick v. Bullough Abatement, Inc.,
2008 UT 82, ¶ 23, 199 P.3d 957 (requiring a finding that the party’s behavior warranted
sanctions under rule 37); see also Utah R. Civ. P. 26(g) (mandating sanctions upon a
determination that certification on a discovery request, response, or objection was made
in violation of the rule). We then review the type and amount of sanctions for abuse of
discretion. See Kilpatrick, 2008 UT 82, ¶ 23 (giving trial courts deference in imposing an
appropriate sanction for a violation of rule 37); Bodell Constr. Co. v. Robbins, 2009 UT 52,
¶ 35, 215 P.3d 933 (applying same standard for conducting review under rule 26). PC
Crane’s arguments focus on whether the sanctions are justifiable (the first step of our
analysis) while McQueen’s arguments target the district court’s discretion in setting the
type and amount of sanctions (the second step of our analysis).

1. The Court’s Factual Findings Are Sufficient Under the Circumstances.

9. Rule 37 and rule 26 of the Utah Rules of Civil Procedure have recently been
amended. See Utah R. Civ. P. 37 advisory comm. notes; id. R. 26 advisory comm. notes.
These amendments, however, only affect cases filed on or after November 1, 2011, and
we therefore rely on the rules as they were preamendment.

20090791‐CA 18
¶33 Rule 37(b)(2) provides for the entry of sanctions if “a party fails to obey an order
entered under [Utah] Rule [of Civil Procedure] 16(b) or if a party . . . fails to obey an
order to provide or permit discovery . . . , unless the court finds that the failure was
substantially justified,” Utah R. Civ. P. 37(b)(2), while rule 37(d) permits sanctions if a
party fails to respond to interrogatories or requests for inspection of documents, see id.
R. 37(d); see also Depew v. Sullivan, 2003 UT App 152, ¶ 35, 71 P.3d 601 (requiring
sanctions for a violation of rule 37(d) “‘unless the court finds that the [discovery
violation] was substantially justified or that other circumstances make [a sanction]
unjust’” (first alteration in original) (quoting Utah R. Civ. P. 34(d))). Under rule 26(g),
“[e]very . . . response or objection [to discovery requests] shall be signed by at least one
attorney of record.” Utah R. Civ. P. 26(g). The signature “constitutes a certification that
the person has read the request, response, or objection and that to the best of the
person’s knowledge, information, and belief formed after reasonable inquiry,” the
response or objection was not made “for any improper purpose,” was made “consistent
with the[] rules” of procedure and existing law, and was not intended to create an
undue burden or expense. Id.

If a certification is made in violation of the rule, the court,
upon motion or upon its own initiative, shall impose upon
the person who made the certification . . . an appropriate
sanction, which may include an order to pay the amount of
the reasonable expenses incurred because of the violation,
including a reasonable attorney fee.

Id.

¶34 “Sanctions are warranted [under rule 37] when (1) the party’s behavior was
willful; (2) the party has acted in bad faith; (3) the court can attribute some fault to the
party; or (4) the party has engaged in persistent dilatory tactics tending to frustrate the
judicial process.” Kilpatrick, 2008 UT 82, ¶ 25 (internal quotation marks omitted). The
parties have not provided, nor have we located, any Utah case law that expressly
requires a finding of fault or willfulness to support a conclusion that rule 26 has been
violated. The Utah Supreme Court, however, in the context of the failure to make
disclosures as required by rule 26(a), has stated that sanctions are not mandatory when
there is “good cause for the failure to disclose.” See Bodell Constr. Co., 2009 UT 52, ¶ 35.
The reference to a good cause exception to the otherwise mandatory imposition of
sanctions under rule 26 therefore implies that the rule does encompass an element of
fault, whether it amounts to willfulness or mere neglect. See generally Fed. R. Civ. P.
26(g)(3) (providing, under a substantially similar rule, that sanctions are mandatory for

20090791‐CA 19
a certification made in violation of the rule unless there was “substantial justification”
for the violation). At the very minimum, rule 26(g) requires reasonable inquiry before
certification that its obligations have been satisfied. See Utah R. Civ. P. 26(g). Moreover,
the “willfulness standard [as it is used in rule 37] is low” and includes “‘any intentional
failure as distinguished from involuntary noncompliance. No wrongful intent need be
shown.’” Welsh v. Hospital Corp. of Utah, 2010 UT App 171, ¶¶ 9, 12, 235 P.3d 791
(quoting Utah Dep’t of Transp. v. Osguthorpe, 892 P.2d 4, 8 (Utah 1995)). Thus, although
couched in different terms, rule 37 and rule 26 both are aimed at encouraging good faith
compliance with the discovery obligations imposed under the rules of civil procedure
and both provide the court with the authority to sanction those who fail to live up to the
requirements of those rules. As discussed in the next section, see infra ¶¶ 37‐40, PC
Crane failed to live up to them in this case.

¶35 We now address PC Crane’s claim that sanctions were not warranted because the
district court failed to make “a factual finding that [its] behavior merits sanctions,” see
Kilpatrick, 2008 UT 82, ¶ 23. Contrary to PC Crane’s contention, the district court did
make such a finding: “The Court finds that [PC Crane]’s position [following the third
motion to compel and the first motion for sanctions hearing] that the trailer
[modification] had never been built[] was inconsistent with [its] previous position that
the trailer had existed” and ordered sanctions “[b]ased upon the inconsistency of [PC
Crane]’s position.” According to PC Crane, however, the court’s finding of
“inconsistency” indicates that it accepted PC Crane’s explanation that its change in
position regarding the modified trailer resulted from an innocent miscommunication,
rather than from any willfulness or bad faith. PC Crane thus asserts that “th[e] finding
. . . is legally insufficient to support an award of sanctions.” The argument is
unpersuasive. Although the word “inconsistent” in isolation might be susceptible to PC
Crane’s interpretation, Judge Reese’s subsequent action‐‐the imposition of a not
insignificant sanction of $7475‐‐clearly demonstrated that he did not accept PC Crane’s
explanation. Rather, it appears Judge Reese used “inconsistent” as a restrained manner
of describing behavior that he found to be sanctionable under the criteria of rule 37 and
rule 26.

¶36 Furthermore, while PC Crane correctly observes that the district court “must find
on the part of the noncomplying party willfulness, bad faith, . . . fault, or persistent
dilatory tactics frustrating the judicial process,” prior to entering sanctions, Morton v.
Continental Baking Co., 938 P.2d 271, 274 (Utah 1997) (citations and internal quotation
marks omitted), “a trial court need not specifically state that willfulness, bad faith, fault,
or persistent dilatory tactics are present to impose sanctions,” Welsh, 2010 UT App 171,
¶ 12. “We will affirm so long as ‘the findings appear in the lower court’s opinion or

20090791‐CA 20
elsewhere to sufficiently indicate the factual basis for the ultimate conclusion’” or where
there is evidence in the record to support the award. Id. (quoting Preston & Chambers,
PC v. Koller, 943 P.2d 260, 263 (Utah Ct. App. 1997)); see also Koller, 943 P.2d at 262‐63
(affirming the entry of rule 37 sanctions in the absence of a willfulness finding where
evidence in the record supported the award). The necessary findings are adequately
discernible from this record.

2. There Is Sufficient Evidence To Warrant the Imposition of Sanctions.

¶37 It is apparent that by September 5, 2007, when the hearing on the second motion
to compel was held, PC Crane was aware that McQueen was seeking specific
information regarding the date or time frame of PC Crane’s collaboration with Stam on
the custom designed trailer that PC Crane described in the 2006 bank application. To
each of McQueen’s discovery requests, however, PC Crane had objected on the basis
that the requests were “overly broad, unduly burdensome, . . . not relevant, and not
likely to lead to admissible evidence.” The bases for such objections were that PC Crane
owned eight to ten trailers at the time and that the one about which McQueen was
seeking information was outside the relevant time period of October 2004 to December
2005. But each of these responses reasonably implied that the subject matter of the
motions to compel‐‐the custom designed trailer‐‐was extant and thus encouraged
McQueen to pursue information about the trailer through additional discovery and
further judicial recourse that would have been entirely unnecessary if the truth about
the subject trailer had been revealed early in the process. McQueen’s requests and the
nature of PC Crane’s objections and responses imposed upon PC Crane an obligation to
reasonably inquire into the essential circumstances surrounding its collaboration with
Stam, at least to an extent that would have revealed the very basic information that the
trailer modification PC Crane had touted to the bank had never actually occurred at all.
Certainly PC Crane could not have been in a position to argue in good faith to the court
that the information McQueen sought about the modified trailer in its various motions
to compel was outside the time frame relevant to the litigation without first having
made the kind of minimal inquiry that would have revealed that the trailer in question
was not, in fact, ever modified. And, at that point, a reasonable person acting within
minimal standards of good faith would have disclosed that critical information to
McQueen and the court.

¶38 PC Crane has offered no justifiable explanation for having proceeded for many
months, through the course of multiple written objections and several hearings, in a
manner that necessarily acknowledged the existence of a modified trailer, when the
trailer modification simply never occurred. At the hearing before Judge Reese on

20090791‐CA 21
March 31, 2009, PC Crane’s counsel admitted that he failed to promptly provide this
information:

If I made one mistake it was in [not] earlier asking my client
more questions about the [custom designed] 300‐ton trailer
[referenced in the 2006 bank application].

What happen[ed], your Honor, let me explain . . . . I
get a request for information relating to the this [2006 bank
application], and I get a request for all documents relating to
this trailer, the 300‐ton trailer, and I e‐mail that‐‐I scanned it
and emailed it over to my client and say I want all the
documents referenced in this and then I follow up with
them. My client told me I have no documents relating to this
trailer.

I did not and I admit today that it is my fault for not
asking the question, was that trailer ever built?

¶39 Although PC Crane attributes the late disclosure to an innocent
miscommunication between it and its counsel, PC Crane’s actions are difficult to
characterize as other than the result of either an inexplicable failure to make the basic
sort of inquiry called for by the circumstances or a disingenuous nondisclosure. In
other words, a reasonable person acting under a minimal obligation of good faith and
candor, as litigants must act in such circumstances, would have realized that this
information was significant to McQueen’s decision about how it should next proceed,
either in discovery or in moving forward toward trial, and would have inquired about
the subject trailer modification, which inquiry likely would have led to the discovery
that the trailer modification, identified and emphasized in PC Crane’s 2006 bank
application, never actually occurred. Certainly, once a motion to compel was filed and
the focus of inquiry identified, not to mention in the course of an additional motion to
compel, letters, memoranda, and hearings over a period of months, the nonexistence of
the subject matter would naturally appear pertinent. Regardless of whether the failure
to disclose was purposeful or negligent, however, PC Crane’s conduct was unjustified,
i.e., lacking the good cause sufficient to avoid sanctions under rule 26 and meeting at
least the minimal standard of some fault under rule 37. Furthermore, that conduct
imposed upon McQueen thousands of dollars in avoidable discovery expenses. On this
evidence, discovery sanctions are appropriate.

20090791‐CA 22
¶40 Implicit in some of PC Crane’s arguments is an assertion that despite its failure to
inquire, PC Crane could not be found in violation of rule 37 because it complied with all
of the district court’s discovery orders and responded to all requests from McQueen.
See generally Utah R. Civ. P. 37(b)(2), (d) (detailing actions during discovery warranting
sanctions). Our discovery rules must be read to require something more than the
merest technical compliance, however. As explained above, the standards for sanctions
under both rule 37 and rule 26 certainly imply that compliance with discovery
obligations implicates some minimal level of reasonableness and good faith, a standard
sufficient to further the laudable purpose stated in rule 1 of our rules of civil procedure
“to secure the just, speedy, and inexpensive determination of every action,” Utah R.
Civ. P. 1. The purpose of rule 1 would be defeated in discovery if mere technical
compliance, however misleading, were always sufficient to avoid discovery sanctions.

C. Judge Reese Properly Awarded McQueen Its Attorney Fees for the Second Motion
for Sanctions but Should Have Reconsidered Judge Dever’s Previous Rulings on
Sanctions in Light of the New Facts.

¶41 Having determined that sanctions were appropriate, we now consider
McQueen’s argument that the amount of the award was too low and amounted to an
abuse of discretion. See generally Utah Dep’t of Transp. v. Osguthorpe, 892 P.2d 4, 8 (Utah
1995). “[T]o show the trial court abused its discretion in choosing which sanction to
impose, [a party] must show either that the sanction is based on an erroneous
conclusion of law or that the sanction lacks an evidentiary basis.” SFR, Inc. v. Comtrol,
Inc., 2008 UT App 31, ¶ 14, 177 P.3d 629 (internal quotation marks omitted).

¶42 With respect to the court’s award of attorney fees on the second motion for
sanctions, we affirm. Judge Reese awarded the full amount of fees incurred in bringing
the second motion for sanctions, that is, the “attorney fees, caused by the failure” of PC
Crane to provide McQueen with straightforward information regarding the trailer
modification referenced in the 2006 bank application. See Utah R. Civ. P. 37(b)(2), (d).10
Because McQueen incurred the fees in the course of obtaining a significant admission

10. Though McQueen does not reference rule 26 for this proposition, rule 26(g) contains
similar language. See generally Utah R. Civ. P. 26(g) (“If a certification is made in
violation of the rule, the court . . . shall impose . . . an appropriate sanction, which may
include an order to pay the amount of the reasonable expenses incurred because of the
violation, including a reasonable attorney fee.” (emphasis added)).

20090791‐CA 23
from PC Crane, which was pertinent to the substance of McQueen’s defense and should
have been revealed much earlier in the discovery process, a sanction of attorney fees is
an appropriate use of the district court’s discretion and we do not disturb it.

¶43 We remand, however, for the district court to reconsider its decision not to revisit
Judge Dever’s earlier denial of sanctions in light of PC Crane’s subsequent admission
that the relevant trailer was never modified. We recognize that “under the law of the
case doctrine, a decision made on an issue during one stage of the case is binding in
successive stages of the same litigation.” See Mid‐America Pipeline Co. v. Four‐Four, Inc.,
2009 UT 43, ¶ 12, 216 P.3d 352 (internal quotation marks omitted). This doctrine,
however, applies only to the parties of the case. The district court is ordinarily “free to
reconsider that decision,” either “sua sponte or at the suggestion of one of the parties.”
See id. (indicating that “the doctrine of law of the case tracks with . . . Utah Rule[] of
Civil Procedure” 54(b), which allows a court to revise its decision any time prior to the
entry of a judgment “‘adjudicating all the claims and the rights and liabilities of all the
parties’” (quoting Utah R. Civ. P. 54(b))). This is true even when a second judge has
taken over the case because “the two judges, while different persons, constitute a single
judicial office.” Jones & Trevor Mktg., Inc. v. Lowry, 2010 UT App 113, ¶ 14, 233 P.3d 538
(internal quotation marks omitted), cert. granted, 238 P.3d 443 (Utah Aug. 26, 2010) (No.
20100449); see also Macris v. Sculptured Software, Inc., 2001 UT 43, ¶ 30, 24 P.3d 984
(concluding that the law of the case doctrine did not preclude a successor judge from
reversing the first judge’s grant of partial summary judgment because the successor
judge was “the same judicial officer reconsidering a prior [nonfinal] ruling under rule
54(b)”). Certain exceptions, however, “function only to dictate when the district court
has no discretion but rather must reconsider a previously decided, unappealed issue.”
See Mid‐America, 2009 UT 43, ¶ 14. One of those exceptions is when new evidence has
been presented.11 See id.
¶44 When Judge Dever considered whether to award sanctions in connection with
McQueen’s earlier motions to compel, he was unaware that the trailer modification at
issue had never occurred, as PC Crane later admitted. PC Crane’s admission is the kind
of evidence that casts those previous discovery disputes‐‐and PC Crane’s related
conduct‐‐in a revealing new light that requires reconsideration of the prior decision to

11. The exceptions that require reconsideration of “a previously decided, unappealed
issue” are “(1) when there has been an intervening change of authority; (2) when new
evidence has become available; or (3) when the court is convinced that its prior decision
was clearly erroneous and would work a manifest injustice.” Mid‐America Pipeline Co. v.
Four‐Four, Inc., 2009 UT 43, ¶ 14, 216 P.3d 352 (internal quotation marks omitted). The
new evidence exception is the most applicable to the circumstances presented here.

20090791‐CA 24
deny sanctions for discovery abuse. See generally id. (requiring a court to reconsider a
previously decided issue when there is new evidence); Sittner v. Big Horn Tar Sands &
Oil, Inc., 692 P.2d 735, 736 (Utah 1984) (stating that evidence presented in a new light is
an exception to the general rule that second judges are bound by the rulings of a
previous judge). Although it is clear that Judge Reese deemed Judge Dever’s previous
decision appropriate given the facts known to Judge Dever at that time he entered it, it
is not apparent that Judge Reese reconsidered that decision in light of PC Crane’s March
2008 admission that the trailer had never been modified. That admission cast new light
on a course of discovery proceedings that, up to the point when Judge Dever made his
ruling, appeared to have been the product of rigid adherence to the technicalities of
discovery requests and orders by “seemingly equally contentious parties, all of which
did not appear to be living up to their discovery obligations.” The new evidence must,
at least, call that conclusion into question in a way that merits further consideration of
the matter in light of all the circumstances, not just those apparent at the time Judge
Dever ruled.

¶45 Consequently, we remand to the district court for reconsideration of whether
sanctions are warranted in addition to the $7475 McQueen incurred in connection with
the second motion for sanctions. In undertaking this analysis, the district court must
take into account all the circumstances of PC Crane’s conduct in view of its subsequent
admission that the trailer modification never occurred. We decline McQueen’s
invitation to undertake that task ourselves; the award or denial of sanctions in
connection with discovery disputes is peculiarly within the discretion of trial courts
because they are best equipped to carry out that kind of responsibility. See Schoney v.
Memorial Estates, Inc., 790 P.2d 584, 585 (Utah Ct. App. 1990) (“Management of the
actions pending before it is uniquely the business of the trial court and while an
appellate court may, of course, intervene if discretion is abused, we accord trial courts
considerable latitude in this regard and considerable deference to their determinations
concerning discovery.”); see also Lee v. Max Int’l, LLC, 638 F.3d 1318, 1320 (10th Cir. 2011)
(“Discovery disputes are, for better or worse, the daily bread of magistrate and district
judges in the age of the disappearing trial. Our district court colleagues live and
breathe these problems; they have a strong situation sense about what is and isn’t
acceptable conduct; by contrast, we encounter these issues rarely and then only from a
distance.”); Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933 (“[T]he district
court judge is in the best position to evaluate the status of his [or her] cases, as well as
the attitudes, motives, and credibility of the parties.” (internal quotation marks
omitted)).
III. Costs

20090791‐CA 25
¶46 The final issue for our resolution is whether the district court abused its
discretion in awarding McQueen $1771.65 as costs for expenses incurred in conducting
depositions. To recover costs, a party must persuade the trial court that the depositions
“were taken in good faith and, in the light of the circumstances, appeared to be essential
for the development and presentation of the case.” Young v. State, 2000 UT 91, ¶ 6, 16
P.3d 549 (internal quotation marks omitted). If the court is persuaded, it must make a
finding that explains “how the depositions were essential,” that is, whether they were
“used in a meaningful way at trial” or “the development of the case was of such a
complex nature that the information in the depositions could not be obtained through
less expensive means of discovery.” Id. ¶ 11. PC Crane asserts this standard was not
met because the information obtained from these depositions could have been gathered
through less expensive means and because the depositions were not “used in some
meaningful way at trial” and were not otherwise necessary for the development of the
case. Although PC Crane frames this as an insufficiency‐of‐the‐evidence argument, it
necessarily encompasses a challenge to the district court’s failure to make the requisite
finding.

¶47 PC Crane has not shown, however, that it raised the absence of the required
finding to the district court, and it therefore has waived the issue for appeal. See Utah
R. App. P. 24(a)(5)(A) (requiring the appellant to identify the place in the record where
the issue was preserved); 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(“[I]n order to preserve an issue for appeal[,] the issue must be presented to the trial
court in such a way that the trial court has an opportunity to rule on that issue. This
requirement puts the trial judge on notice of the asserted error and allows for correction
at that time in the course of the proceeding.” (alterations in original) (citations and
internal quotation marks omitted)); see also In re K.F., 2009 UT 4, ¶ 62, 201 P.3d 985
(requiring a party to object to the adequacy of the findings in the trial court to preserve
the issue for appeal). This preservation rule ensures that the district court “has the
opportunity” “to address and correct . . . the level of detail in [its] findings” while it was
still “easy . . . to correct.” K.F., 2009 UT 4, ¶¶ 62‐63 (“Judicial economy would be
disserved if we permitted a challenge to the adequacy of the detail in the findings to be
heard for the first time on appeal.”). Because we do not have any findings on which we
may review the district court’s decision, we cannot address PC Crane’s argument that
the deposition costs were not essential to the development of the case.

CONCLUSION

20090791‐CA 26
¶48 The district court did not err in denying attorney fees under the goodwill notes
and the deed of trust because no event of default had occurred to trigger entitlement to
attorney fees under any of the contracts. We also affirm the denial of fees under the
guaranty because the guaranty’s attorney fee provision was not triggered by this
litigation. The award of sanctions on the second motion for sanctions was appropriate,
but we remand for Judge Reese to reconsider Judge Dever’s previous denial of
sanctions in light of PC Crane’s subsequent disclosure that the trailer modification had
never occurred. With respect to the deposition costs, the issue has not been preserved
for appeal and we therefore affirm.

____________________________________
Stephen L. Roth, Judge

‐‐‐‐‐

¶49 WE CONCUR:

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

____________________________________
William A. Thorne Jr., Judge

20090791‐CA 27