(Concurring and Dissenting):
I concur in affirming the judgment of the trial court. I dissent from the award of double costs and attorney fees under R. Utah Ct.App. 33(a).
Damages are awardable under Rule 33(a) if the appeal is taken for delay or if the issues presented on appeal are frivolous. As the majority states, this-Court defines a frivolous appeal as “one having no reasonable legal or factual basis as defined in [R. Utah Ct.App.] 40(a).” O’Brien v. Rush, 744 P.2d 306, 310 (Utah App.1987). In support of its award, the majority points to several factors, including deliberate attempts by Mantua to frustrate the purposes of the agreement and Mantua’s failure to prevail at trial and on appeal. I am not persuaded that these factors render the appeal void of any reasonable legal or factual basis. On the contrary, I believe defendant’s claims on appeal, although unsuccessful, had some merit worthy of consideration as evidenced by the content of the majority opinion.
This Court recently stated, “We recognize that sanctions for frivolous appeals should only be applied in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions.” Porco v. Porco, 752 P.2d 365, 369 (Utah App.1988). This case is not the “egregious” case where sanctions should be imposed. Indeed, the award of damages in this case will have a chilling effect on the right to appeal erroneous trial court decisions.