concurring and dissenting:
I concur in the majority opinion with the following exceptions.
I. ATTORNEY FEES ON APPEAL
I would not award any attorney fees on appeal for two reasons. First, in Management Services Corp. v. Development Associates, 617 P.2d 406, 409 (Utah 1980), we observed that a successful plaintiff in the trial court that is awarded fees would have its rights diminished if it is required to sueeess-fully defend its recovery on appeal at its own expense. That reasoning, however, fails to support an award of fees on appeal to a party that cannot successfully defend on appeal its recovery in the trial court. Such is the instant case where the Fitzgerald parties have not successfully defended the award of fees made to them by the trial court. Thus the appeal by the Yalcarces was necessary and justified to correct trial court error. In that situation, the parties should bear their own fees on appeal. See Zoll & Branch v. Asay, 932 P.2d 592, 596 (Utah 1997), where we denied attorney fees on appeal to a respondent who did not successfully defend on appeal his entire trial court award.
Second, the basis for awarding fees to the Fitzgerald parties in the trial court was section 78-27-56, which allows an award of fees when the action or defense to the action was without merit and not brought or asserted in good faith. While the majority upholds awarding fees to the Fitzgerald parties for their attorney’s trial court services under section 78-27-56, the majority does not find or even discuss whether the requirements of the statute have been met on appeal. Clearly, the requirements have not been met inasmuch as we have found trial court error. Thus the appeal by the Valearces is meritorious and is not brought in bad faith, leaving no basis for awarding fees on appeal to the Fitzgerald parties.
II. ATTORNEY FEES IN THE TRIAL COURT
I concur in remanding the case to the trial court for “a review and allocation of the recoverable fees” for services in the trial court and make the following observations. It is not clear to me that the trial court intended that the full award of $42,420.02 for attorney fees was to be against Paul as well as his son, Jim. If that was intended, it was error as the majority concludes. Paul did not bring this action; he defended himself against the claims of Fitzgerald and the Ju-landers. Some of those claims were denied. No fees in defending against Jim’s claims or in pursuing claims against Jim are allowable against Paul. Fees incurred before Paul was made a party and fees incurred on behalf of *320Fairview “C” Bar Ranch are not allowable against him. While Paul may have in some instances acted as agent for Jim, the opposite is not true: Jim was not the agent of Paul, and therefore, Paul is not responsible for Jim’s conduct. The trial court will need to “sort out” the time spent by the attorney for the Fitzgerald parties and properly allocate his fees to either Jim or Paul or to both jointly.
III. JULANDERS’ DAMAGES FOR 1992 and 1995
I would reverse the award of damages to the Julanders for loss of rent for 1992 and 1995 because there is no evidence to support that award. Before the beginning of the 1995 growing season, the Valearces had been enjoined from interfering with Fitzgerald’s water right. They did in fact not interfere that year. Accordingly, no damages were awarded to the Fitzgeralds for any 1995 losses. That being so, no damage could be sustained by the Julanders, who were Fitzgerald’s lessors. In fact, Fitzgerald testified that he paid only $800 rent for 1995 because that was all the Julanders asked for and that he would have been willing to pay more.
The same is true for 1992. Again, no damages were awarded to Fitzgerald for any crop loss that year, and there is no evidence that any reduction in rent for that year was due to any conduct of the Valearces.
DURHAM, Associate C.J., concurs in Chief Justice HOWE’s concurring and dissenting opinion.