(concurring and dissenting).
I would affirm the judgment of the trial court without modification.
Highland’s contention that it is a “prevailing party,” and thus entitled to an award of attorney’s fees, was not presented to the trial court, nor was any evidence offered in support thereof.1 Consequently, Highland is precluded from raising the issue for the first time on this appeal.2
The assertion of the majority that it was hot fatal that Highland did not present any evidence to the trial court as to what would be a reasonable fee is an ipse dixit. All that renders it other than fatal is the willingness on the part of a majority of the court to defy precedent and remand for the purpose of affording Highland a second opportunity to prove its case. The assertion also begs the issue presented by this appeal. Not only did Highland fail to present evidence of a reasonable fee, it also did not advance its theory, presented for the first time on appeal, that it was also a prevailing party.
Similarly, I am unable to subscribe to the further assertion of the majority that it was pointless for Highland to have requested an opportunity to present further evidence as to fees after the court found in favor of Stevenson. Had Highland’s theory, as now advanced on appeal, been duly presented at trial, the trial court may very well have been just as enlightened as was this Court in discerning that there may be more than one prevailing party in a given lawsuit. However, it matters not what the ruling of the court might have been, the crucial point is that the issue was not presented and ruled upon. The unavoidable consequence is that the issue was not preserved for appeal and Highland cannot now be heard to complain.3
.That attorney’s fees may not be awarded without a stipulation or evidence given as to the value thereof, see Freed Finance Company v. Stoker Motor Company, Utah, 537 P.2d 1039 (1975).
. Park City Utah Corp. v. Ensign Company, Utah, 586 P.2d 446 (1978); Edgar v. Wagner, Utah, 572 P.2d 405 (1977).
.Id.