author: THORNE, Jr., Judge:

text:
    2003 UT App 411
    PRIDE STABLES, a Utah limited partnership, Plaintiff and Appellant, v. HOMESTEAD GOLF CLUB, INC.; Frank Shannon; Gerald R. Sanders; et al., Defendants and Appellees.
    No. 20020796-CA.
    Court of Appeals of Utah.
    Nov. 28, 2003.

      Jesse C. Trentadue and Michael W. Homer, Suitter Axland, Salt Lake City, for Appellant.
    Richard D. Burbidge and Stephen B. Mitchell, Salt Lake City, for Appellees.
    Before JACKSON, P.J., ORME and THORNE, Jr., JJ.
   OPINION

THORNE, Jr., Judge:

{1 Pride Stables (Pride), a Utah limited partnership, appeals the denial of a motion to amend its pleadings and a grant of summary judgment to Homestead Golf Club, Inc., Gerald R. Sanders, and Great Inns of the Rockies, Inc. (collectively, Homestead), based on the trial court's determination that Pride's claims were barred by res judicata. We affirm.

BACKGROUND

12 In 1987, Pride, which was the partial owner of land located in Midway, Utah, filed bankruptcy and sought to reorganize under Chapter 11 of the United States Bankruptcy Code. After the bankruptey was filed, Homestead approached Pride and asked for a lease to construct a golf course on Pride's property in exchange for lending Pride $185,000. Before the parties signed any lease agreement, Pride authored a "letter of commitment," allegedly in exchange for a $5000 advance on the loan. This letter of commitment allowed Homestead to obtain permission from Midway to begin construction of the golf course on a portion of Pride's property. However, the letter of commitment made clear that the parties had yet to reach a final agreement regarding the construction of the golf course. The letter provided:

The underlying agreements between the parties necessary to make such a commitment have been reached in principle and are awaiting final documentation, which is expected to be prepared and signed within the next two weeks. As such, we have no objection to the granting of a construction permit to the Homestead Golf Club, Inc. for the purpose of beginning construction on the proposed golf course in Midway, Utah.

T3 Subsequently, Pride and Homestead were unable to agree on the lease terms, because Homestead wanted Pride's other creditors to subordinate their liens on the lease property. Pride was unable to obtain these subordinations.

1 4 In 1989, Pride sued Homestead in district court, alleging that Homestead breached its contractual obligation to loan Pride $185,000, that Homestead had tortiously interfered with Pride's business relationship, had breached a covenant of good faith and fair dealing, and had committed fraud. Subsequently, creditors foreclosed a portion of Pride's property, which Homestead purchased at the foreclosure sale. Pride retained title to a piece of property that had not been subject to foreclosure and on which Homestead planned to construct the 14th hole of the golf course (14th hole property).

T5 To preserve a claimed interest in the 14th hole property, Homestead filed an "adversary proceeding" in the bankruptcy court, alleging that Pride had granted Homestead a license to use the property. In response, Pride attempted to litigate issues relating not only to the 14th hole property but also relating to the property Homestead had purchased at the foreclosure sale. The bankruptcy court limited its review to the 14th hole property, deciding that it did not have jurisdiction over the property sold at foreclosure because that property was no longer part of the bankruptcy estate.

1 6 Several appeals occurred in the federal bankruptey case until, finally, the matter was decided by the Tenth Cireuit Court of Appeals in Homestead Golf Club, Inc. v. Pride Stables, 224 F.3d 1195 (10th Cir.2000). There, the court concluded that Pride and Homestead had not entered into a valid oral lease agreement, see id. at 1200, because the court was "unable to determine the rights of the respective parties under the agreement." Id. at 1201. The court also rejected Pride's claim for equitable estoppel. See id. at 1202. The court further noted in a footnote that Pride had raised the defenses of detrimental reliance and part performance, but concluded that it would not address issues raised for the first time in a reply brief. See id. at 1202 n. 10.

T7 In November 2001, over fourteen months after the Tenth Circuit ruling, Pride filed a motion to amend its complaint in the state court action. Homestead objected and argued that Pride should not be allowed to amend its complaint because it had been twelve years since Pride first filed suit and the Homestead officer who allegedly committed most of the wrongful acts had died. Furthermore, after several of the named defendants were each granted summary judgment and dismissed from the action, Pride failed to take any action in the case for ten years. Homestead also argued that the claims Pride wanted to add to its amended complaint were barred by res judicata, as they had been, or should have been, litigated in the bankruptcy proceeding.

18 The district court denied Pride's motion to amend because it was untimely. The court stated,

the untimeliness unduly prejudices the opposing party. All parties agree that the discovery was completed in the early years of this lawsuit. Since the time of the filing and completion of discovery, the person alleged to have been the principal wrongdoer, LL. Stroud, has died. Even though he testified in earlier proceedings and was deposed, plaintiff has alleged new causes of action which cannot now be explored. Additionally, while the federal court action may have caused some delay in these proceedings, the federal lawsuit was completed September 12, 2000. Plaintiff makes no explanation for the fourteen month delay before it filed its motion in this lawsuit.

The court also found that the bankruptcy court's rulings barred the complaint. The court stated,

the [Tenth Cireuit] ruled that no agreement existed between [Pride] and [Homestead], that there had never been a meeting of the minds on the terms of the agreement, and at best their discussions had only been an agreement to agree. All of the plaintiff's proposed amended causes of action are based upon the same factual basis upon which the Tenth Circuit rendered its opinion.

19 Subsequently, Homestead filed a motion for summary judgment, arguing that all the claims in the existing complaint were also barred by res judicata. Pride filed a cross-motion for partial summary judgment, arguing that Homestead could not deny that it had promised to loan Pride $185,000 because Homestead had stipulated to this fact in a pretrial order. The court granted Homestead's motion on the ground that Pride's claims were barred by res judicata. The trial court stated:

The res judicata effect of the 10th Circuit Court's decision bars causes of action. It is undisputed that this lawsuit is based upon only one set of operative facts and one transaction. [Pride]'s ... cause of action for breach of contract and ... cause of action for breach of implied covenant of good faith and fair dealing, which depends on an enforceable contract, are based upon the same agreement that the 10th Cireuit Court ruled was never completed by the parties. Therefore, it is clear that the 10th Circuit ruling that there was no agreement between the parties bars these causes of actions. Although plaintiff argues that its cause of action included elaims based upon part performance and promissory estoppel, [Pride] has not pled them.
As to ... fraud, .... [while an enforceable contract is not required for an action in fraud, [Pride]'s fraud claim is based upon [Homestead]s' failure to perform under the alleged agreement which was addressed by the 10th Cireuit opinion.... It appears clear that one cannot base a fraud claim on a failure to perform an agreement where the court has found no agreement exists.... [TJhe plaintiff is barred by the res judicata effect of the 10th Cireuit opinion as to its fraud claim, as well.

1 10 Pride appeals.

ISSUES AND STANDARDS OF REVIEW

T11 Pride claims that the trial court erred in denying the motion to amend its pleadings after concluding that all the amendments were barred by res judicata. "Whether to grant or deny a motion to amend is 'a matter within the broad discretion of the trial court and we [will not] disturb its ruling unless [the appealing party] establishes an abuse of discretion resulting in prejudice." " Nunez v. Albo, 2002 UT App 247,¶ 10, 58 P.3d 2 (first alternation original) (quoting Chadwick v. Nielsen, 763 P.2d 817, 820 (Utah Ct.App.1988), cert. denied, 59 P.3d 603 (Utah 2002)).

¶12 Pride also argues that the trial court erred in granting Homestead's motion for summary judgment. " "The propriety of a trial court's grant of summary judgment is a question of law.' " Snyder v. Murray City Corp., 2008 UT 13,¶ 16, 73 P.3d 325 (quoting WebBank v. Am. Gen. Annuity Serv. Corp., 2002 UT 88,¶ 10, 54 P.3d 1139). " 'In deciding whether summary judgment was appropriate, we need review only whether the trial court erred in applying the relevant law and whether a material fact was in dispute." " Id. (quoting WebBank, 2002 UT 88 at ¶ 10, 54 P.3d 1139). " 'We thus review the trial court's legal conclusions for correctness, according them no deference" " Id. (citation omitted)

ANALYSIS

{13 Pride's arguments on appeal are interrelated. The trial court denied Pride's motion to amend because the motion was untimely and because the claims in the proposed amendment were barred by res judica-ta. Likewise, the court granted Homestead's motion for summary judgment because it concluded that the action was barred by res judicata. Accordingly, we address these arguments in concert.

114 " 'Res judicata encompasses two distinct doctrines: claim preclusion and issue preclusion. " Snyder v. Murray City Corp., 2008 UT 13,1 383, 78 P.3d 825 (quoting Miller v. USAA Cas. Ins. Co., 2002 UT 6,157, 44 P.3d 663) (other citations omitted). The district court did not specify upon which branch of res judicata it relied, but we conclude that claim preclusion is the most applicable here.

115 " 'Generally, "claim preclusion bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously." ' " Id. at 134 (citations omitted).

" 'In order for a claim to be precluded under this doctrine the party seeking preclusion must establish three elements: 'First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits'' "

Id. (emphasis added) (citations omitted).

"16 Pride's attempt to distinguish between the two parcels of property in an attempt to prevent res judicata from applying in this case is not persuasive. We recognize that the bankruptcy proceeding related only to the 14th hole property. However, the alleged agreement at issue in the bank-ruptcey case is the same alleged agreement that Pride seeks to enforce here. According ly, any finding regarding that agreement is binding upon us if the elements of claim preclusion are met.

117 Here, Homestead argues that each of the elements of claim preclusion have been met. First, Homestead notes that both the bankruptcy proceeding and this action involve Pride and Homestead. See Snyder, 2003 UT 13 at 134, 73 P.3d 825. Homestead further argues that Pride's claims, both in its original complaint and in the subsequent amendment, are barred by claim preclusion because each claim could have been or should have been raised in the bankruptcy proceeding. Finally, Homestead asserts that the bankruptey proceeding resulted in a final judgment on the merits. See id.

£18 Upon review, we conclude that the parties fully litigated in the bankruptey proceeding the issue of whether an express contract existed between Pride and Homestead. We also conclude that the Tenth Circuit expressly rejected Pride's argument that the agreement between the parties was enforceable by equitable estoppel. See Homestead Golf Club, Inc. v. Pride Stables, 224 F.3d 1195, 1201-02 (10th Cir.2000). Most importantly, we conclude Pride could have raised in the bankruptcy proceedings the very issues of part performance, promissory estop-pel, and fraud that it now seeks to raise. Accordingly, the elements of claim preclusion have been met and res judicata prohibits Pride from relitigating these issues here.

119 Turning to this appeal, Pride first argues that the trial court should have granted its motion to amend its complaint. We disagree. The trial court found that Homestead would be prejudiced if Pride were allowed to amend its complaint because it had been over ten years since discovery was completed and one of the key witnesses had died since discovery was closed. Furthermore, the court properly concluded that the claims Pride wanted to raise in its amendment were barred by res judicata. Under these circumstances, the trial court did not exceed its permitted range of discretion in denying Pride's motion to amend its pleadings. See Nunes v. Albo, 2002 UT App 247,¶ 10, 58 P.3d 2 (cert. denied, 59 P.3d 608 (Utah 2002)).

20 Likewise, the trial court did not err in granting Homestead's motion for summary judgment. The trial court properly concluded that each of Pride's claims was barred by res judicata. See Snyder v. Murray City Corp., 2008 UT 13,¶ 384, 73 P.3d 325.

CONCLUSION

{21 The district court did not exceed its permitted range of discretion in denying Pride's motion to amend its pleadings, for the motion was untimely and all claims contained in such amendment were barred by res judi-cata. Similarly, the trial court granted Homestead its motion for summary judgment, for all claims raised by Pride were barred by res judicata.

122 I CONCUR: NORMAN H. JACKSON, Presiding Judge.

23 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.

      . Valley Bank and Trust Company was granted summary judgment and summarily dismissed prior to trial along with several other originally-named defendants.

      . The court granted Homestead's request to take judicial notice of the bankruptcy proceedings, including the appeal to the Tenth Circuit Court of Appeals.

      . Pride also argues that the trial court erred in denying its cross-motion for partial summary judgment. In that motion, Pride argued that Homestead could not deny that it had promised to loan Pride $185,000 because Homestead had stipulated to this fact in a pretrial order. Because we conclude that Homestead was entitled to summary judgment, thereby rendering Pride's motion moot, we do not address this argument.
      Pride also argues Homestead was judicially estopped from denying it promised to loan Pride $185,000 because it had stipulated in a pretrial order it had "orally agreed that [it] would lend [Pride] the sum of $185,000 so that [Pride] could make payment to certain of its creditors." We need not address this argument because, even if Homestead admitted it had made a promise to Pride, this would not overcome the res judicata effect of the Tenth Circuit's ruling.

      . Because we conclude that this case involves claim preclusion, we do not address issue preclusion.

      . The more persuasive set of facts and argument would have been that each parcel of property was subject to a separate agreement. If separate agreements had been proven, then the Tenth Circuit decision regarding the loan agreement secured by the 14th hole property would have no bearing on the alleged agreement secured by the remaining property. Pride does not argue on appeal that two agreements existed nor does any evidence in the record support the claim that Pride and Homestead negotiated more than one agreement.

      . Pride attempted to raise the arguments of part performance and promissory estoppel in the bankruptcy proceeding. However, the Tenth Circuit refused to address these arguments because Pride failed to raise them until its reply brief. This has no impact on our res judicata analysis. The issue is not whether the arguments were raised, but whether they should or could have been properly raised by the parties in the earlier proceeding.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2003 UT App 415
    Po-Cheng CHANG; Beatrice H. Chang; and American Estate Management Corporation, a Utah corporation, Plaintiffs and Appellants, v. SOLDIER SUMMIT DEVELOPMENT, a Utah limited partnership; American City Corporation, a Utah corporation; International Investment & Development Corporation, a Utah corporation; Ming-Cheng Lin; and Hsiun Mei Yen Lin, Defendants and Appellees.
    No. 20020453-CA.
    Court of Appeals of Utah.
    Dec. 4, 2003.
    Rehearing Denied Jan. 14, 2004.

      R. Brent Stephens, Heather S. White, Snow Christensen & Martineau, Salt Lake City, for Appellants.
    Merrill F. Nelson, David M. Wahlquist, Kirton & McConkie, Salt Lake City, for Ap-pellees.
    Before BILLINGS, Associate Presiding Judge, and DAVIS and ORME, JJ.
   OPINION

DAVIS, Judge:

11 Po-Cheng Chang, Beatrice H. Chang, and American Estate Management Corporation (collectively, Plaintiffs) appeal from the trial court's January 3, 2002 order of distribution. We affirm in part, and reverse and remand in part.

BACKGROUND

1 2 Soldier Summit Development (SSD) is a Utah limited partnership, formed in November 1978. Plaintiffs are limited partners of SSD. American City Corporation is the only entity designated as a general partner in SSD's partnership agreement. However, because of a chain of common ownership among several entities and individuals, all of the following are defendants in this case: American City Corporation, International Investment & Development Corporation, Ming-Cheng Lin, and Hsiun Mei Yen Lin (collectively, Defendants). In addition to their involvement in SSD, Plaintiffs and Defendants have been involved in several other business relationships and ventures.

13 Several years after SSD was formed, Plaintiffs and Defendants executed an agreement (the Separation Agreement) to terminate some of their business relationships, including their involvement in SSD. The parties had disagreements about the Separation Agreement after it was executed and, as a result, Plaintiffs filed suit against Defendants. In their final amended complaint, Plaintiffs asserted causes of action for: (1) dissolution of SSD; (2) breach of fiduciary duty; (3) entitlement to an accounting of SSD; (4) negligent misrepresentation; (5) breach of the Separation Agreement; (6) breach of a consulting agreement; (7) breach of the partnership agreement; (8) fraud and misrepresentation; and (9) specific performance of the Separation Agreement, a consulting agreement, and the partnership agreement. In response, Defendants' answer asserted numerous affirmative defenses and asserted counterclaims for: (1) breach of fiduciary duty; (2) fraud and misrepresentation; (8) negligent misrepresentation; (4) conversion; (5) breach of the partnership agreement; and (6) entitlement to an accounting of Homestead Associates, one of the parties' other partnerships.

T4 Each party filed a motion for partial summary judgment and argued these motions before the trial court. After hearing oral argument, the trial court entered a memorandum decision and an order, dated August 18, 1997, "dispos[ing] of all issues raised by the pleadings." Plaintiffs were granted summary judgment on some claims and Defendants were granted summary judgment on some claims. In reference to two of Plaintiffs' claims, the order noted that, based upon a stipulation of the parties, the trial court would "order a decree of dissolution and an accounting of [SSD]." Plaintiffs appealed the trial court's order, asserting that the trial court erred in granting partial summary judgment to Defendants. This court affirmed the trial court's order. See Chang v. Soldier Summit Dev., 1999 UT App 27 (mem.) (Chang I).

15 Thereafter, Plaintiffs filed several motions to enforce this order. The trial court entered an order, dated June 5, 2000, granting in part and denying in part Plaintiffs' motion to enforce. This order required Defendants to "procure a certified public accountant to prepare an accounting" of SSD "in accordance with generally accepted accounting principles" and required that the certified public accountant selected "must be acceptable to both [Pllaintiffs and [DJlefen-dants." The order also required that the accounting "be completed within thirty (80) days following closing of the sale to a third party of the real property owned by [SSD]" and that SSD pay for the cost of the accounting.

T6 In August 2000, SSD sold the real property referenced in the court's order. Later, in the fall of 2000, the parties agreed upon an acceptable certified public accountant, Kent M. Bowman, to perform the accounting of SSD in accordance with the court's order and SSD engaged Bowman to perform the accounting. Bowman prepared his first accounting (the first accounting) and Defendants filed a motion for distribution of SSD's assets in accordance with the first accounting. Plaintiffs opposed Defendants' motion and filed a cross-motion for distribution of SSD's assets in accordance with a schedule (Plaintiffs' proposed distribution schedule) prepared by a certified public accountant Plaintiffs had hired, Gil A. Miller. Before the court resolved the parties' respective motions, Miller and Bowman met to discuss the first accounting. Miller, representing only the Plaintiffs, suggested that Bowman make certain changes to the first accounting. Following this meeting, Bowman revised the first accounting and prepared a second accounting (the final accounting). Despite these efforts, Plaintiffs still opposed the final accounting.

7 To resolve these issues, the trial court held a three-day evidentiary hearing. Plaintiffs argued their opposition to the final accounting during the hearing. In response to these arguments, the trial court offered Plaintiffs the opportunity to resolve their opposition to the final accounting on at least two occasions. First, during opening statements, the trial court asked the parties if they would like to order a new accounting. Neither party indicated that they wanted a new accounting to be performed. Second, on the final day of the hearing, the trial court offered to suspend the hearing so that Plaintiffs could conduct an audit of SSD's books and records. Plaintiffs declined this offer.

T8 Following the evidentiary hearing, the trial court entered its Findings of Fact, Conclusions of Law, and Order of Distribution, dated January 3, 2002. In its findings of fact, the court acknowledged Plaintiffs' specific objections to the final accounting and made numerous findings in support of the final accounting.

19 The trial court also entered findings and conclusions addressing each party's request for attorney fees. The trial court found that Defendants had made various loans to SSD and that a portion of these loans were used to pay SSD's attorney fees relating to this case. The trial court determined that SSD should repay Defendants for these loans, provided that the proceeds were used for a legitimate partnership purpose. The trial court also determined that the parties did not dispute that the loans were used for legitimate partnership purposes, except for the portion of the loans used to pay SSD's attorney fees. The trial court concluded that because this case was a limited partnership derivative action pursuant to statute, see Utah Code Ann. § 48-22-1001 (2002), Defendants, as general partners of SSD, were entitled to be reimbursed for SSD's attorney fees pursuant to statute. See id. § 48-2a-1006 (2002). However, the trial court also concluded that the statute limited such reimbursement to the extent that Defendants were successful in defending claims brought by Plaintiffs. See id. The trial court also determined "that [Pilaintiffs [were] not entitled to recover their attorney fees."

T 10 The trial court then found that Defendants "prevailed on some claims, and [Plaintiffs] prevailed on some claims." The trial court further found that "the major issues] and most expensive aspect[s] in this litigation [were] whether [Plaintiffs could recover damages for breach of contract, fraud, and negligent misrepresentation arising out of [Defendants'] alleged failure to develop [SSD]'s real property. [Defendants] clearly prevailed on these issues both at the trial court and on appeal" in Chang I. Accordingly, the trial court determined that it was "appropriate to permit [SSD] to reimburse [Defendants] for only two-thirds of" SSD's attorney fees relating to this case. In support of this determination, the trial court noted that it was "based in part out of the [clourt's familiarity with the issues in the case and in part out of the [clourt's recognition that had [Defendants] kept better books and records, a portion of the expenses for the litigation may have been unnecessary." The trial court also noted that "[i]t represent[ed] the [clourt's best educated estimate regarding that portion of the fees incurred in defending against issues upon which [Defendants] prevailed on behalf of [SSD]."

11 Based upon the foregoing and its other findings and conclusions, the trial court ordered that the assets of SSD be distributed to the parties in accordance with the final accounting, as equitably modified by the trial court. Plaintiffs appeal.

ISSUES AND STANDARDS OF REVIEW

112 First, Plaintiffs argue that the trial court erred in distributing SSD's assets in accordance with the final accounting. "We uphold a lower court's findings of fact unless the evidence supporting them is so lacking that we must conclude the finding is 'clearly erroncous."" Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998) (citation omitted). "In contrast, we review a trial court's conclusions as to the legal effect of a given set of found facts for correctness." Id.

113 Second, Plaintiffs make several arguments about attorney fees. Plaintiffs argue that the trial court erred in concluding that Defendants were entitled to recover attorney fees. Plaintiffs also argue that the trial court erred in calculating the amount of attorney fees awarded to Defendants. Finally, Plaintiffs argue that the trial court erred in concluding that Plaintiffs were not entitled to recover attorney fees relating to claims upon which they were successful. "Whether attorney fees are recoverable is a question of law, which we review for correctness." R.T. Nielson Co. v. Cook, 2002 UT 11,¶ 16, 40 P.3d 1119. When attorney fees are recoverable, "[the trial court has broad discretion in determining what constitutes a reasonable fee, and we will consider that determination against an abuse-of-discretion standard." Id. at 120 (quotations and citations omitted).

ANALYSIS

I. The Final Accounting

$14 Plaintiffs argue that the trial court erred in distributing SSD's assets in accordance with the final accounting. In essence, Plaintiffs argue that the final accounting is not accurate or reliable because it contains several alleged deficiencies.

1 15 As confirmed by Plaintiffs' counsel at oral argument, Plaintiffs do not challenge the trial court's findings of fact supporting the final accounting. Rather, Plaintiffs characterize their argument purely as a challenge to the trial court's legal conclusions and order of distribution. However, the issues that Plaintiffs raise in their argument are either purely fact issues or, at most, mixed questions of law and fact. Because Plaintiffs do not challenge the trial court's findings, and because we conclude that the trial court's legal conclusions and order of distribution are both legally sound and supported by the unchallenged findings, Plaintiffs' argument fails. See Miller v. Martineau & Co., 1999 UT App 216,¶ 34, 983 P.2d 1107 ("[Blecause [appellant] does not challenge the trial court's pertinent findings, we affirm the trial court's conclusion. ...").

{16 Furthermore, at the evidentiary hearing, Plaintiffs waived their challenge to any alleged deficiencies in the final accounting. At the hearing, the trial court offered Plaintiffs at least two opportunities to correct the alleged deficiencies. However, the record and the trial court's findings establish that Plaintiffs declined these offers and, instead, requested that the trial court choose between the final accounting and Plaintiffs' proposed distribution schedule, with equitable modifications made by the trial court as necessary. Plaintiffs' request and their rejection of the trial court's offer to correct the alleged deficiencies in the final accounting amount to invited error. As a result, Plaintiffs cannot now raise these issues as arguments on appeal. See Cheves v. Williams, 1999 UT 86,¶ 20, 993 P.2d 191 (stating that, under invited error doctrine, verdict would not be reversed "where the complaining party essentially invited the alleged error by failing to avail itself of the opportunity-offered at trial-to avoid such error"); Miller, 1999 UT App 216 at ¶ 42, 983 P.2d 1107 ("The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal." (quotatiqns and citations omitted)).

{17 Based upon the foregoing, we affirm the trial court's distribution of SSD's assets in accordance with the final accounting.

II. Attorney Fees

$18 Plaintiffs make several arguments about attorney fees. Plaintiffs argue that the trial court erred in concluding that Defendants were entitled to recover attorney fees. Plaintiffs also argue that the trial court erred in calculating the amount of attorney fees awarded to Defendants. Finally, Plaintiffs argue that the trial court erred in concluding that Plaintiffs were not entitled to recover attorney fees relating to claims upon which they were successful.

A. Defendants' Entitlement to Attorney Fees

%19 Plaintiffs argue that the trial court erred in concluding that Defendants were entitled to recover attorney fees. "Attorney fees are generally recoverable in Utah only when authorized by statute or contract." Prince v. Bear River Mut. Ins. Co., 2002 UT 68,¶ 52, 56 P.3d 524. Neither party disputes the trial court's conclusion that Plaintiffs' case was brought as a limited partnership derivative action, pursuant to statute. See Utah Code Ann. § 48-22-1001 (2002). As such, an award of attorney fees and costs to the general partners-Defendants in this case-is authorized by statute as follows:

To the extent that a general partner has been successful on the merits or otherwise in defense of any action, suit, or proceeding brought against the general partner under [slection 48-22-1001, or in defense of any claim, issue, or matter therein, the general partner shall be indemnified by the limited partnership against expenses, including attorney[ ] fees, which the general partner actually and reasonably incurred.

Id. § 48-22-1006 (2002). Section 48-22-1006 clearly requires the trial court to award attorney fees and costs to general partners to the extent they are successful in defending claims brought by limited partners under section 48-2a-1001. Therefore, in order to award attorney fees and costs to Defendants under section 48-22-1006, the trial court was required to determine the extent that Defendants were successful in defending the claims brought by Plaintiffs under section 48-2a-1001.

120 The determination of which party is the prevailing party for purposes of an attorney fee award

is an appropriate question for the trial court. This question depends, to a large measure, on the context of each case, and, therefore, it is appropriate to leave this determination to the sound discretion of the trial court. We therefore review the trial court's determination as to who was the prevailing party under an abuse of discretion standard.

R.T. Nielson Co. v. Cook, 2002 UT 11,¶ 25, 40 P.3d 1119. Appropriate considerations for a trial court in making this determination include: (1) "the number of claims, counterclaims, eross-claims, ete., brought by the parties"; (2) "the importance of the claims relative to each other and their significance in the context of the lawsuit considered as a whole"; and (8) "the dollar amounts attached to and awarded in connection with the various claims." Id. "Based on these and other relevant factors, the trial court is in a better position than we are as an appellate court to decide which party is the prevailing party." Id.

121 In its findings of fact, the trial court determined that Defendants prevailed on two-thirds of the case brought by Plaintiffs and, accordingly, awarded Defendants two-thirds of SSD's attorney fees. In support of this determination, the trial court found that although each party prevailed on some claims, the Defendants prevailed on the "major issue[s] and most expensive aspect[s]" of this case, which were "whether [Plaintiffs could recover damages for breach of contract, fraud, and negligent misrepresentation arising out of [Defendants'] alleged failure to develop [SSD]'s real property." The trial court noted that "[Defendants] clearly prevailed on these issues both at the trial court and on appeal" in Chang I.

122 We conclude that the trial court considered the appropriate factors and did not abuse its discretion in determining that Defendants prevailed on two-thirds of the case brought by Plaintiffs. As a result, the trial court properly determined the extent that Defendants were successful in defending the claims brought by Plaintiffs, as required under section 48-22-1006. Therefore, we uphold the trial court's conclusion that Defendants were entitled to two-thirds of SSD's attorney fees under section 48-22-1006.

B. Amount of Defendants' Attorney Fees

123 Plaintiffs argue that the trial court erred in calculating the amount of attorney fees awarded to Defendants. Section 48-22-1006 allows a general partner to be indemnified by the limited partnership for attorney fees, but only for those fees "which the general partner actually and reasonably incurred." Utah Code Ann. § 48-22-1006. "Calculation of reasonable attorney fees is in the sound discretion of the trial court, and will not be overturned in the absence of a showing of a clear abuse of discretion." Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988) (citation omitted). In exercising its discretion to determine reasonable attorney fees for purposes of an attorney fee award,

the trial court should find answers to four questions:
1. What legal work was actually performed?
2. How much of the work performed was reasonably necessary to adequately prosecute the matter?
3. Is the attorney's billing rate consistent with the rates customarily charged in the locality for similar services?
4. Are there cirenmstances which require consideration of additional factors, including those listed in the Code of Professional Responsibility?

Id. at 990 (footnotes omitted).

124 In this case, Defendants' attorney fee award was somewhat unique, in that the award was made indirectly, by validating the repayment of loans made by Defendants to SSD for the attorney fees. Although the trial court properly determined that SSD should repay Defendants for any loans made to SSD for legitimate partnership purposes, this determination does not amount to a determination of an award of reasonable attorney fees to Defendants. Regardless of the circumstances surrounding the attorney fee award in this case, the trial court was still under an obligation to consider the required factors before making such an award. See id. After reviewing the record and the trial court's findings of fact, it is unclear whether the trial court considered these factors. Therefore, we conclude that the trial court exceeded its discretion in determining the amount of attorney fees awarded to Defendants. We remand for the trial court to determine SSD's reasonable attorney fees and to adjust Defendants' attorney fee award, if necessary, consistent with this opinion.

C. Plaintiffs' Attorney Fees

25 Finally, Plaintiffs argue that the trial court erred in concluding that Plaintiffs were not entitled to recover attorney fees relating to claims upon which they were sue-cessful. Again, "[alttorney fees are generally recoverable in Utah only when authorized by statute or contract." Prince v. Bear River Mut. Ins. Co., 2002 UT 68,¶ 52, 56 P.3d 524. In a limited partnership derivative action, see Utah Code Ann. § 48-2a-1001 (2002), an award of attorney fees and costs to the limited partners-Plaintiffs in this case-is permitted by statute as follows:

If a derivative action [] is successful, in whole or in part, or if anything is received by the plaintiff as a result of a judgment, compromise, or settlement of an action or claim, the court may award the plaintiff reasonable expenses, including reasonable attorney[ ] fees, and shall direct him to remit to the limited partnership the remainder of those proceeds received by him.

Id. § 48-22-1004 (2002).

126 Section 48-22-1004 clearly provides that, in a limited partnership derivative action, the trial court "may award the plaintiff ... reasonable attorney fees." Id. (emphasis added). Because the plain language of the statute makes the award of attorney fees discretionary, we review the trial court's decision under an abuse of discretion standard. See Trench Shoring Servs., Inc. v. Saratoga Springs Dev., LLC., 2002 UT App 300,¶ 8, 57 P.3d 241.

127 After reviewing the trial court's ruling and the record, we cannot say that the trial court exceeded its discretion in determining that Plaintiffs were not entitled to attorney fees under section 48-2a-1004. Furthermore, because we agree with both the trial court's determination that Defendants were the prevailing party for the purpose of awarding attorney fees and its decision to award attorney fees to Defendants, an award of attorney fees to Plaintiffs would have been inappropriate. See Mountain States Broad. Co. v. Neale, 783 P.2d 551, 555-57 (Utah Ct.App.1989). Therefore, we affirm the trial court's conclusion that Plaintiffs were not entitled to attorney fees.

CONCLUSION

1 28 We affirm the trial court's distribution of SSD's assets in accordance with the final accounting. We also affirm the trial court's conclusion that Defendants were entitled to an award of attorney fees and hold that Defendants are entitled to attorney fees on appeal. However, we conclude that the trial court exceeded its discretion in determining the amount of attorney fees awarded to Defendants. We remand for the trial court to determine Defendants' reasonable attorney fees incurred both at trial and on appeal, and to adjust Defendants' attorney fee award, consistent with this opinion. Finally, we affirm the trial court's conclusion that Plaintiffs were not entitled to attorney fees.

29 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY K. ORME, Judge.

      . In support of the final accounting, the trial court entered the following findings of fact: (1) the final accounting was "an independent accounting"; (2) although SSD's books and records were "not as complete as they could be," they were "sufficient for preparation of a reasonably accurate accounting"; (3) the final accounting "reasonably reflect{ed] the income and expenses of [SSD] during the relevant time period"; (4) the income unaccounted for in the final accounting was "less than 1% of [SSD's] total income" and that because "such accuracy would be sufficient even for an audit," it was more than sufficient "for an accounting[,] which requires a much lower level of accuracy"; (5) the final accounting was prepared "in such a manner as to construe any incompleteness in favor of the [Pllaintiffs"; (6) it was "reasonable to accept [the final] accounting as being in compliance with the [clourt's June 5, 2000 order and to modify the accounting as equity may require to reach a final order of distribution."

      . Intertwined with their argument about Defendants' attorney fees is Plaintiffs' argument that the 10% interest rate attached to the various loans Defendants made to SSD, including those for SSD's attorney fees, is "unconscionable." Because Plaintiffs raised this argument for the first time in their reply brief, we decline to address it. See Utah R.App. P. 24(c);, Hart v. Salt Lake County Comm'n, 945 P.2d 125, 139 n. 9 (Utah Ct.App.1997) ("[Blecause this argument was raised for the first time in [the] reply brief, we decline to address it.").

      . The trial court determined that Defendants "prevailed" on two-thirds of the case. However, the statute authorizing an award of attorney fees in this case requires that Defendants be "successful." Utah Code Ann. § 48-2a-1006 (2002). We have previously held that these two terms are used synonymously in determining when a party is entitled to attorney fees. See A.K. & R. Whipple Plumbing & Heating v. Guy, 2002 UT App 73,¶ 12, 47 P.3d 92 (holding that the terms " 'successful party'" and " 'prevailing party'" should be used synonymously when determining «entitlement to attorney fees under a statute), cert. granted, 59 P.3d 603 (Utah 2002).

      . Defendants request attorney fees incurred on appeal. "[Where a statute provides for the payment of attorney fees to the prevailing party' or the 'successful party,' we have held that such a party is entitled to fees in the trial court and on appeal if the judgment is affirmed." Zoll & Branch, P.C. v. Asay, 932 P.2d 592, 595 (Utah 1997) (citations omitted). "Only if a party has fully complied with the terms of the entitling statute should fees be awarded." Id. We have already held that the trial court properly determined that Defendants were entitled to attorney fees at the trial level to the extent that they were successful in defending the claims brought by Plaintiffs, in accordance with the entitling statute. See Utah Code Ann. § 48-2a-1006. We also hold that Defendants are entitled to attorney fees incurred on appeal, in an amount to be determined by the trial court on remand. See Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998); Brown v. David K. Richards & Co., 1999 UT App 109,¶¶ 25-27, 50, 978 P.2d 470; Brown v. Richards, 840 P.2d 143, 156-57 (Utah Ct.App.1992). That amount must reflect, of course, that Defendants were not successful on appeal on issue B of section II of this opinion. See Mountain States Broad. Co. v. Neale, 783 P.2d 551, 556 n. 10, 557 n. 11 (Utah Ct.App.1989).

      . The parties do not dispute the trial court's conclusion "that this action is in the nature of a derivative action as described in" the statute governing limited partnership derivative actions. See Utah Code Ann. § 48-2a-1001 (2002).


author: BILLINGS, Associate Presiding Judge: ORME, Judge

text:
    2003 UT App 417
    STATE of Utah, Plaintiff and Appellee, v. Jamil K. CORBITT, Defendant and Appellant.
    No. 20020375-CA.
    Court of Appeals of Utah.
    Dec. 4, 2003.

      Heather Johnson, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., GREENWOOD, and ORME, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

1 1 Jamil Corbitt appeals from an order of restitution stemming from his conviction for possession of a stolen vehicle, a second degree felony, in violation of Utah Code Annotated section 41-la-18316(2) (1998). We affirm.

BACKGROUND

[2 In January 2001, Roman and Francesca Lopez (the Lopezes) purchased a 1998 Dodge Dakota (the truck) from an auto dealership in Murray for $15,995.00. Concurrently, the Lopezes purchased a thirty-six month or 80,000 mile service contract for $1,999.00 and paid $1,123.92 for taxes and licensing fees. In total, the Lopezes paid $19,117.92. To finance the purchase, the Lo-pezes made a $500.00 down payment, traded in another vehicle for a net trade-in allowance of $1,475.00, and obtained a bank loan for the remaining balance of $17,142.92. The loan carried an annual interest rate of 16.6% and required monthly payments of $425.63 for sixty months.

138 About two weeks later, in February 2001, the truck was stolen from the Lopezes' residence. On the day of the theft, the Lo-pezes contacted police and their insurance company. The police listed the truck in the stolen vehicle database and began efforts to locate it. Ultimately, the insurance company took title to the truck and paid $12,489.10 to the Lopezes' lender. However, the Lopezes testified that they were still obligated to continue making monthly payments on the unpaid balance of their loan. Accordingly, the Lopezes made loan payments of $425.63 in both February and March 2001. By the time of the restitution hearing, the Lopezes testified they still owed $4,772.46 to the leader.

4 On April 16, 2001, during a traffic stop, a Salt Lake County Sheriff's deputy learned that Corbitt was driving the Lopezes' stolen truck. The State filed charges against Cor-bitt for illegal possession of a stolen vehicle. Corbitt admitted he knew the truck was stolen and pleaded guilty as charged.

15 As part of his sentence, the trial court ordered Corbitt to pay restitution to the Lopezes. Corbitt requested a restitution hearing. After the hearing, Corbitt was ordered to pay a total of $5,623.72 in restitution. At Corbitt's request, the trial court indicated on the record that $4,772.46 constituted "the difference between the price that was paid [for the truck] and what was paid to [the Lopezes] by [the] insurance company." The remaining $851.26 was for "the two [monthly loan] payments [the Lopezes] made while the [truck] was gone." The trial court issued written findings of fact and conclusions of law ordering Corbitt to pay the $5,623.72 in restitution in $150.00 monthly installment payments until the balance was repaid. Corbitt appeals.

ISSUE AND STANDARD OF REVIEW

16 Corbitt contends the trial court erred in ordering him to pay any restitution after the insurance company paid the Lo-pezes' claim. "Trial courts are vested with 'wide latitude and discretion in sentencing, " State v. Fedorowicz, 2002 UT 67, ¶ 63, 52 P.3d 1194 (quoting State v. Woodland, 945 P.2d 665, 671 (Utah 1997)), and we " 'will not disturb a trial court's restitution order unless it exceeds that prescribed by law or otherwise abused its discretion." " State v. Mast, 2001 UT App 402, ¶ 7, 40 P.3d 1143 (quoting State v. Breeze, 2001 UT App 200, ¶ 5, 29 P.3d 19). "[The exercise of discretion in sentencing necessarily reflects the personal judgment of the court and the appellate court can properly find abuse only if it can be said that no reasonable [person] would take the view adopted by the trial court." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978).

ANALYSIS

I. Pecuniary Damages Under the Restitution Statute

T7 First, Corbitt argues the trial court erred in concluding the Lopezes suffered pecuniary damages. Corbitt asserts that under Utah Code Annotated sections Ti-838a-101 to -802 (Supp.2002) (the restitution statute), any losses the Lopezes sustained are not "pecuniary damages" of the type required for a crime victim to receive restitution. See id. § 77-382-102(6). Furthermore, Corbitt contends that any losses sustained by the Lopezes were not the result of Corbitt's admitted criminal conduct. See id. We disagree on both accounts.

T 8 The restitution statute provides:

"Pecuniary damages" means all special damages, but not general damages,[] which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities and includes the money equivalent of property taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical expenses.

Id.

T9 "[T}he record in the case before us reflects that the State presented evidence which would support a civil conversion action against [Corbitt]," State v. McBride, 940 P.2d 539, 548 (Utah Ct.App.1997), as well as an award of damages from such an action. We have stated that generally, "the measure of damages in a conversion action is the value of the property at the time of the conversion, plus interest." Jenkins v. Equipment Ctr., Inc., 869 P.2d 1000, 1004 (Utah Ct.App.1994). Further, "[the damages in an action for conversion are measured by the sum of money necessary to compensate the plaintiff for all actual losses or injuries sustained as a natural and proximate result of the defendant's wrong." Id. (quotations and citations omitted). Finally, "[the primary objective in rendering an award of damages for conversion is to award the injured party full compensation for actual losses." Id. (quotations and citations omitted). Hence, "rules relating to the measure of damages are flexible, and can be modified in the interest of fairness." Id. (quotations and citations omitted).

{10 Corbitt argues that because the insurance company paid the Lopezeg' claim, the Lopezes were "fully reimbursed" for all losses they sustained and thus did not suffer pecuniary damages. Therefore, Corbitt argues that the trial court's order of restitution "go[es] beyond the victims' pecuniary damages [in] violation of the restitution statute." In support of this argument, Corbitt relies on State v. Twitchell, 882 P.2d 866 (Utah Ct.App.1992). We think Corbitt misreads the Twitchell holding.

T11 In Twitchell, the defendant admitted taking premium payments from his victims on nonexistent insurance policies. See id. at 867. However, the defendant argued that the misappropriated premium payments "did not represent ... actual loss[es] to the vie-tims" because "he paid any claims victims made on the nonexistent policies and victims who had no claims were no more damaged than if they had been fully insured." Id. at 868. As such, the defendant argued the misappropriated premium payments could not be legally classified as "pecuniary damages" under the restitution statute. Id. We rejected this argument as "untenable" and held "Itlhe [restitution] statute's definition of pecuniary damages includes the misappropriated policy payments ..., even though the victims were fortunate enough to suffer no major losses during the time they were uninsured." Id. at 869. Furthermore, "[the defendant] admitted in his plea agreement ... the very facts and elements necessary to prove liability in a civil proceeding for conversion." Id. at 870. As such, the losses created by the defendant's misappropriations in Twitchell constituted " 'special damages ..., which [the victims] could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities' " Id. at 869 (quoting Utah Code Aun. § 76-3-201(4)(b) (1990)). Based on this reasoning, we held the trial court did not abuse its discretion or exceed its legal authority by finding the victims' losses were " '[plecuniary damages' " under the restitution statute. Id. (quoting Utah Code Ann. § 76-3-201(4)(b) (1990)).

112 Similarly, in this case Corbitt contends that because the Lopezes received an insurance payment on their claim for the stolen truck, the Lopezes sustained no "actual loss" and therefore had no "pecuniary damages" as a result of Corbitt's criminal activity. Corbitt's argument parallels the defendant's "untenable" argument in Twitchell, id. 832 P.2d at 869, and we are equally unpersuaded. First, as in Twitchell, Corbitt admitted in his plea affidavit the elements necessary to prove a conversion claim. See-ond, notwithstanding any subsequent insurance payment on behalf of the Lopezes, the fact remains that by Corbitt's admitted illegal possession of the stolen truck, Corbitt inflicted on the Lopezes "special damages ... includ{ing] the money equivalent of property taken ... and [other] losses," "which [the Lopezes] could recover against [Corbitt] in a civil action" for conversion. Utah Code Ann. § 77-382-102(6) (Supp.2002). Hence, a plain reading of the restitution statute reveals that the Lopezes did suffer "pecuniary damages" as contemplated by the restitution statute. See id. Furthermore, by admitting his guilt on the charge of possessing a stolen vehicle, Corbitt "firmly established" his responsibility for the pecuniary damages resulting from his criminal conduct, State v. Mast, 2001 UT App 402, ¶ 13, 40 P.3d 1148 (quoting State v. Watson, 1999 UT App 273, ¶ 5, 987 P.2d 1289 (per curiam)), and he cannot now be heard to argue otherwise on appeal. Accordingly, we hold the trial court did not abuse its discretion or exceed its authority in determining the Lopezes sustained pecuniary damages caused by Cor-bitt's criminal activity for purposes of the restitution statute.

II. Amount of Restitution

118 Second, Corbitt argues the trial court erred in determining the monetary sum required for complete restitution. See Utah Code Ann. § 77-382-802(2)(a) (Supp.2002) (defining complete restitution as the "restitution necessary to compensate a victim for all losses caused by the defendant").

114 The restitution statute provides: "When a defendant is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence it may impose, the court shall order that the defendant make restitution to victims of crime...." Id. § 77-882-302(1) (emphasis added). To determine "the monetary sum and other conditions for complete restitution" the trial court must consider, inter alia, "the cost of the damage or loss" to the victim as a result of the offense. Id. § 77-382a-302(5)(b). We also note that the well-settled remedial purpose of our restitution statute is "to compensate victims for the harm caused by a defendant and ... to spare victims the time, expense, and emotional difficulties of separate civil litigation to recover their damages from the defendant." Monson v. Carver, 928 P.2d 1017, 1027 (Utah 1996). Furthermore, as stated above, the measure of damages is flexible, allowing trial courts to fashion an equitable award to the victim. See Jenkins v. Equipment Cir., Inc., 869 P.2d 1000, 1004 (Utah Ct.App.1994).

1 15 Corbitt argues the trial court erred in using the "purchase price" of the truck instead of the insurance company's valuation to determine the monetary amount required for complete restitution of the Lopezes' pecuniary damages. Stated another way, Corbitt contends he "is not responsible for the difference between the amount the Lopezes' paid for the [truck] and its actual value [as determined by the insurance company]." The appropriate measure of the loss or damage to a victim is fact-sengitive and will vary based on the facts of a particular case. In some cases, a purchase price may be appropriate to a determination of loss, in other cases it may not be appropriate. We think it unwise to adopt a black-letter rule that either always requires or never permits the use of purchase price or insurance settlement amount as valuation methods under the restitution statute. Here, the date of purchase and the date the car was stolen are only about two weeks apart; hence the use of purchase price in this case seems highly appropriate.

£16 Furthermore, Utah law supports the use of purchase price as a property valuation method under the restitution statute. In State v. McBride, 940 P.2d 539 (Utah Ct.App.1997), we faced a factual scenario somewhat similar to the one we face in this appeal. Like the Lopezes in this case, the car-buyer in McBride financed the purchase of a vehicle by making a down payment and then signing a note for the balance of the purchase price. See id. at 540. The victimized seller (the victim) retained the car's title to secure the note. See id. Thereafter, the vehicle was stolen. See id. Some weeks later, police stopped the defendant as he was driving the stolen vehicle and impounded the vehicle. See id. However, due to a transcribing error, neither the car-buyer nor the victim were notified by police that the vehicle had been recovered. See id. at 541. Unable to locate an owner, the impound lot finally sold the car. See id. Meanwhile, the car-buyer defaulted on the loan and the victim was unable to recover the vehicle. See id. The defendant was charged with receiving or transferring a stolen vehicle and later pleaded guilty to unlawful control over a vehicle. See id. After a restitution hearing, the trial court ordered the defendant to pay the remaining balance of the loan as restitution, see id., just as did the trial court in this case. On appeal, we noted the defendant in McBride was Hable to the victim in a civil action for conversion for pecuniary damages equaling the remaining loan amount on the vehicle. See id. at 543 (citing Allred v. Hinkley, 8 Utah 2d 73, 328 P.2d 726, 728 (1958)). We held that were it not for the defendant's criminal act, the victim's "loss would not have occurred." Id. at 544. Here, the truck was stolen only two weeks after it was purchased. The trial court was persuaded that the purchase price of the truck was a more accurate reflection of the fair market value than the insurance company's valuation given the short period of time between the purchase and the theft. Based on the deference we must accord the trial court, we hold the trial court did not abuse its discretion in granting the restitution ordered in this case.

CONCLUSION

T 17 The trial court did not abuse its discretion or exceed its legal authority in determining the Lopezes suffered pecuniary damages resulting from Corbitt's admitted criminal conduct. Further, the trial court did not abuse its discretion or exceed its legal authority in ordering the amount of restitution in this case. Accordingly, we affirm the order of restitution.

T18 I CONCUR: PAMELA T. GREENWOOD, Judge.

ORME, Judge

(concurring):

19 I concur fully in the court's opinion. I write separately only to highlight the incorrect use of legal terminology in the statute. I do so in the hope the controlling language of the statute will be corrected. That failing, I hope to make a record of the incorrect usage so that the peculiar meaning of the terms "special damages" and "general damages" as used in the restitution statute will not muddy the meaning of those terms in other contexts.

{20 Our restitution statute says that the "[plecuniary damages" that can be awarded are "all special damages, but not general damages." Utah Code Ann. § 77-882a-102(6) (Supp.2002). The difference between general damages and special damages is suceinetly explained by Professor Dan B. Dobbs in these terms:

Special damages include items of loss that are more or less peculiar to the particular plaintiff and would not be expected to oceur regularly to other plaintiffs in similar cireumstances. General damages, on the other hand, are damages that courts believe "generally" flow from the kind of substantive wrong done by the defendant.
. The distinction between general damages on the one hand and special damages on the other hand is quite important for practical reasons. Courts are quite willing to award general damages but quite reluctant to award special damages.

Dan B. Dobbs, Handbook on the Law of Remedies § 8.2, at 188-89 (West 1973). Dobbs goes on to explain that two particular limitations combine to restrict or preclude the availability of special damages. "The first is that special damages must be proved to a reasonable certainty.... The second ... is that no special damages are recoverable if they are deemed remote." Id. § 8.2, at 139. In tort cases, remoteness is addressed as an aspect of proximate cause. See id. If special damages are disallowed in a tort case, the court will

say that the defendant's tort was not a proximate cause of the plaintiff's damages. In a contract case a very similar idea will be expressed by saying that the damages claimed by the plaintiff as a result of the defendant's breach were not within the contemplation of the parties when the contract was made, and therefore are not recoverable.

Id.

121 This concept is, quite literally, "horn-book law," and Utah unquestionably adheres to these settled precepts-at least outside the context of eriminal restitution. See Castillo v. Atlanta Cas. Co., 989 P.2d 1204, 1209 (Utah Ct.App.) (stating that plaintiffs in contract actions can recover "general damages, which flow naturally from the breach, and consequential damages, which, while not an invariable result of breach, were reasonably foreseeable by the parties at the time the contract was entered into"), cert. denied, 945 P.2d 1118 (Utah 1997); Cohn v. J.C. Penney Co., 587 P.2d 306, 307 (Utah 1975) ("General damages are those which naturally and necessarily result from the harm done. They are damages which everybody knows are likely to result from the harm described and so are said to be implied in law. Special damages are those which occur as a natural consequence of the harm done but are not so certain to flow therefrom as to be implied in law. One claiming them must plead them so as to let his adversary know what will be involved.")

122 Lawyers will recall the application of these principles in cases considered at length in the first year of law school. Thus, Mr. Baxendale was not liable to Mr. Hadley for the profits Hadley lost when his mill was shut down longer than necessary because Baxendale was remiss in delivering a part. See Hadley v. Baxendale, 156 Eng. Rep. 145, 151 (Exch.1854). It was held that

such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary cireumstances, nor were the special cireumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. >

Id. Similarly, a tortfeasor may be liable to the owner of a house if a fire he starts while negligently working therein or nearby destroys the house, but he may not be liable to the owner of a distant house to which the fire spreads. See generally Ryan v. New York Cen. R.R. Co., 85 N.Y. 210, 216-17 (1866). But see Milwaukee & Saint Paul Ry. Co. v. Kellogg, 94 U.S. 469, 474-75, 24 L.Ed. 256 (1876).

123 What is the practical distinction between special and general damages? Dobbs gives this example: If through negligence, plaintiff's land is flooded, the measure of general damages will typically be the amount by which the value of the land was diminish ed. See Dobbs, Handbook on the Law of Remedies § 3.2, at 189. Plaintiff might also have a claim for special damages. "For example, the flooding might have led to mosquitoes that caused the plaintiff to contract disease. If this could be proven, the landowner might reasonably assert a claim for both general damages and special damages." Id.

{24 In the case of conversion, the tort most closely paralleling the crime in this case, the measure of general damages is "the value of the chattel at the time and place of conversion, usually with interest from that time." Id. § 5.14, at 403 (footnote omitted). Accord Jenkins v. Equipment Ctr., Inc., 869 P.2d 1000, 1004 (Utah Ct.App.1994) (noting that "the measure of damages in a conversion action is the value of the property at the time of the conversion, plus interest"). Potential special damages for conversion include "damages for loss of use of the converted article," Dobbs, Handbook on the Law of Remedies § 5.14, at 408, and "expenses of pursuing the converted property." Id. § 5.14, at 410. See Lilengquist v. Utah State Nat'l Bank, 99 Utah 168, 100 P.2d 185, 190 (1940) (noting that "special damages over and above the value of the converted property may properly be awarded where the circumstances are such as to warrant it"). Accordingly, in Henderson v. For-Shor Co., 757 P2d 465 (Utah Ct.App.1988), we noted that

"(special damages may be recovered in an action for conversion for any injury proximately resulting from the conversion. Damages flowing from the conversion which are not ordinary, usual, or commonly to be expected, are recoverable if, under the circumstances, it can be fairly said that both parties have these consequences in contemplation at the time of the wrong complained of, as the probable result thereof, and if these unusual consequences are neither uncertain, unnatural, nor remote as to cause, nor speculative and conjectural in effect. Thus, compensation for time lost as a proximate result of the conversion, or for time and money spent in pursuit of the property converted, may be recovered. The owner may also recover special damages resulting from the withholding of the property."

Id. at 469-70 (quoting 18 Am.Jur.2d Conversion § 117 (1985)).

1 25 What does all this mean in cases like the instant one? Under a plain reading of the restitution statute, which is the approach we are obligated to employ, see State v. Westerman, 945 P.2d 695, 696 (Utah Ct.App.1997), the result is a bizarre one: The victims of a criminal conversion of their automobile may not recover general damages, the value of their vehicle at the time and place of conversion, but they are entitled to their special damages. See Utah Code Ann. § 77-88a-102(6) (Supp.2002) (" 'Pecuniary damages' means all special damages, but not general damages, which a person could recover against the defendant in a civil action[.]"). Thus, while they could not recover the value of their lost vehicle, they could recover the cost of renting substitute transportation or cab and bus fare, the expenses of hiring a private investigator to find the car, and the profits lost if the car was used on a newspaper delivery route or by a traveling salesman. Such an approach inverts the usual hierarchy of the law whereby the more certain general damages are readily available while the less automatic, more speculative special damages are tougher to recover. See Dobbs, Handbook on the Law of Remedies § 3.2, at 139 ("Courts are quite willing to award general damages but quite reluctant to award special damages."); Utah R. Civ. P. 9 (The same pleading rule requiring, in subsection (b), that fraud be pleaded "with particularity" also requires, in subsection (g), that "[wlhen items of special damage are claimed, they shall be specifically stated.").

126 Uncharacteristically, Utah appellate courts have ignored the plain language of the statute and done what the Legislature probably really intended. Thus, we pay lip service to the fact that the statute equates pecuniary damages with special damages and excludes any recovery for general damages but then go on to affirm awards of what are clearly general damages. See eg., State v. McBride, 940 P.2d 539, 545 (Utah Ct.App.) (holding "the trial court correctly ordered appellant to pay restitution for the full value of the vehicle"), cert. denied, 958 P.2d 449 (Utah 1997); State v. Twitchell, 882 P.2d 866, 870 (Utah Ct.App.1992) (affirming restitution award on conversion theory "[blecause the measure of damages in a conversion case is the full value of the converted property"). The main opinion in this case finesses the problem, while affirming a restitution award that unmistakenly includes general damages, by observing in footnote 2 that "Corbitt does not assert the Lopezres' losses are general damages of the type excluded from the restitution statute[ ]."

€27 The mistaken exclusion of all general damages from the definition of pecuniary damages as used in the restitution statute is no doubt attributable to the Legislature's degire to exclude pain and suffering, diminished reputation, and other less tangible elements of damage from the seope of restitution orders. As explained by Dobbs,

there is one special and entirely different use of the term "general damages[,"] that should be distinguished. In the case of certain dignitary invasions, such as libels, invasions of privacy, assaults, alienation of affections, and the like, the injury done is often not an economic one at all but substantial damages are allowed nevertheless. These are called general damages, to distinguish them from proof of actual economic harm and from punitive damages. In the dignitary cases, then, the term "general damages" does not refer to a measure at all; it merely refers to damages awarded for the affront to the plaintiff's dignity and the emotional harm done. In all other cases, the term "general damages" is a measure or yardstick, and it can be applied to the facts of the case to determine the actual amount of money that should be awarded.

Dobbs, Handbook on the Law of Remedies § 8.2, at 139 (emphasis in original; footnote omitted).

128 The practical approach employed by Utah appellate courts has been to limit, albeit sub silentio, the general damages exclusion in the restitution statute to what Dobbs characterizes as "dignitary invasions," while at the same time effectively ignoring the statute's definition of pecuniary damages as dovetailing with special damages, and instead just focusing on demonstrable pecuniary loss, or what Dobbs refers to as "actual economic harm." Id. I think this approach advances the Legislature's intent in the broad sense, but it is very much at odds with our oft-repeated objective to interpret statutes in accordance with the plain meaning of the words used. As such, I find the approach to be somewhat uncomfortable. Perhaps it will be less so if we are perfectly candid about what we are doing pending the Legislature's opportunity to adjust the statute.

      . In 2002, the Utah Legislature amended and renumbered Utah Code Annotated section 76-3-201 (1999). These changes do not affect the substance of our analysis. Therefore, for convenience we cite to the current version of the statutes.

      . Corbitt does not assert that the Lopezes' losses are general damages of the type excluded from the restitution statute's definition of "pecuniary damages." See Utah Code Ann. § 77-38a-102(6) (Supp.2002).

      . By statute, the trial court is obligated to factor the insurance payment into the determination of the amount of court-ordered restitution that will be required of a defendant. See Utah Code Ann. § 77-382-302(5)(c) (Supp.2002) ("In determining the monetary sum ... for court-ordered restitution, the court shall consider ... circumstances which the court determines may make restitution inappropriate."). However, evidence of insurance coverage should be included neither in the "pecuniary damages" determination, nor in the "complete restitution" determination because in making these deterininations trial courts only look to whether or not the victim suffered damages as a result of the defendant's criminal conduct and, if so, how much. Id. §§ 77-38a-102(6), -302(2)(a), and -302(5)(c).

      . Corbitt argues the trial court erred in requiring him to pay restitution for the service contract the Lopezes purchased with the truck, the cost of which was incorporated into the loan the Lo-pezes obtained to finance the purchase, because loss of the service contract "is not a loss attributable to ... Corbitt's crime." However, Corbitt cites no applicable authority that would indicate the cost of the service contract was not a pecuniary loss under the restitution statute. See Utah Code Ann. § 77-38a-102(6). Furthermore, the trial court determined that the remaining loan balance was the measure of the monetary amount required for complete restitution, not the costs of individual components of the Lopezes' purchase. For the reasons we articulate below, we refuse to alter the trial court's restitution order.

      . We note that the trial court properly considered Corbitt's testimony regarding his financial resources, his ability to pay restitution, and other factors required by the restitution statute, see id. § 77-38a-302(5), before determining the amount of court-ordered restitution required of Corbitt.

      . The case differs from ours in that the defendant in McBride was challenging an order of restitution on the basis that intervening police negligence cut off any liability the defendant may have otherwise had to the victim. See State v. McBride, 940 P.2d 539, 542-45 (Utah Ct.App.1997). Also, the victim in McBride was the seller who also financed the car-buyer's purchase. See id. at 540. However, because of the car-buyer's default, the seller was left with an unpaid loan and was thereby victimized in the same way the Lopezes were victimized in this case. See id. at 541.

      . The State contends the trial court "forgot to take into account the trade-in allowance and down payment" and thereby "incorrectly calculated" the amount of restitution Corbitt should pay. The State urges us to either modify the order of restitution to remedy this "clerical mistake," or remand with instructions that the trial court "recalculate the restitution amount." We decline. The record indicates the trial court had before it evidence of the trade-in allowance and down payment, as well as evidence of the remaining balance on the Lopezes' loan. In light of the trial court's wide discretion in sentencing, the absence of any evidence showing the trial court miscalculated the amount of restitution, and the trial court's clear intentions as evidenced by the written findings of facts and conclusions of law, we leave undisturbed the amount of restitution provided in the restitution order.

      . "Special damages" and "consequential damages" are synonymous. See Marquette Cement Mfg. Co. v. Louisville & Nashville R.R. Co., 281 F.Supp. 944, 948, 950 (E.D.Tenn.1967), aff'd, 406 F.2d 731 (6th Cir.1969).

      . The Court in Cohn offered this tort example:
      Plaintiff sues defendant for blowing up his dam in the river and claims damages in the amount of $5,000. His proof shows the cost of repairs to the dam to be $1,000. He offers evidence to the effect that he had a water mill which had to be shut down for two months during the rebuilding of the dam and that he lost profits in the amount of $4,000 as a result thereof. The rebuilding of the dam is an item of general damages, but the loss of profits due to inoperation of the mill is an item of special damage because it is peculiar to his case. Another man might have his dam blown up and might not even own a mill, or it might not be operative. Still another man might have special damages because he could not irrigate his farm as a result of the destruction of the dam which he owned and the flowering of the water below the bottom of his lateral ditch. Each dam owner would need to set forth his particular special damages because such special damages do not of necessity follow as a result of the tort. ' f
      Cohn v. J.C. Penney Co., 537 P.2d 306, 307 (Utah 1975).

      . "The writer is reminded of Lincoln's observation that calling a horse's tail a leg does not make it a leg." Boards of Educ. v. Salt Lake County Comm'n, 749 P.2d 1264, 1271 n. 2 (Utah 1988) (Howe, J., concurring & dissenting).


text:
    2003 UT App 416
    STATE of Utah, Plaintiff and Appellee, v. Richard Dale HOUSTON, Defendant and Appellant.
    No. 20020526-CA.
    Court of Appeals of Utah.
    Dec. 4, 2003.

      Heather Johnson and David P.S. Mack, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kris C. Leonard, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before JACKSON, P.J., DAVIS and THORNE, Jr., JJ.
   OPINION

DAVIS, Judge:

[ 1 Richard Dale Houston appeals the trial court's denial of his motion to dismiss under Utah Code Annotated section T7-29-1 (1999) (the Speedy Trial Statute). We affirm.

BACKGROUND

{2 On November 29, 2001, Houston and a codefendant were charged by information with aggravated robbery. On December 8, 2001, while in prison, Houston executed a "Notice and Request for Disposition of Pending Charge(s)" pursuant to the Speedy Trial Statute. The Division of Institutional Operations received Houston's request on December 14.

T3 Houston's preliminary hearing began on January 15, 2002 and was continued to the following day. The prison did not transport Houston to the trial court the following day for the continuation of the preliminary hearing and, as a result, the hearing was continued to January 24. The preliminary hearing was completed on January 24 and Houston was bound over on the charge of aggravated robbery.

T4 At the scheduled arraignment on February 11, the State filed a motion for a joint trial with dual juries. Because the codefen-dant had provided the State with evidence against Houston, and because the codefen-dant and Houston both had counsel from the Salt Lake Legal Defender Association, the appointment of conflict counsel was necessary. To allow for the appointment of conflict counsel, the trial court continued the arraignment to February 25. At the February 25 arraignment, Houston was arraigned and pleaded not guilty, and the trial court scheduled a three-day jury trial to begin on March 18.

1 5 On February 27, the State filed a document entitled "Notice of Expert Witnesses." Subsequently, at the March 11 pretrial conference, the trial court determined that it would have to reschedule the trial in order to provide Houston with the full thirty-day notice period for the State's expert witnesses because defense counsel insisted upon the full thirty days and declined to request a continuance as provided for by statute. See Utah Code Ann. § 77-17-18(1)(a), (4)(a) (1999). When the court initiated a rescheduling discussion with the parties, defense counsel indicated that he was unavailable for trial during the week of April 1. The trial court also notified the parties that it was unavailable for trial during the weeks of April 8 and April 15. After some discussion, the trial court rescheduled Houston's three-day trial to begin on April 24.

T6 On April 18, Houston filed a motion to dismiss the charge against him, pursuant to the Speedy Trial Statute. The trial court denied this motion at a motion hearing on April 22. On April 26, at the conclusion of a three-day trial, Houston was convicted of aggravated robbery. Houston appeals the trial court's denial of his motion to dismiss under the Speedy Trial Statute.

ISSUE AND STANDARD OF REVIEW

17 Houston argues that the trial court erred by denying his motion to dismiss under the Speedy Trial Statute. "[We review a trial court's determination that a defendant's charges should be dismissed pursuant to the Speedy Trial Statute for abuse of discretion." State v. Coleman, 2001 UT App 281,¶ 83, 34 P.3d 790, cert. denied, 42 P.3d 951 (Utah 2002). "An appellate court will find abuse of discretion only where there is no 'reasonable basis in the record to support' the trial court's Speedy Trial Statute determination of 'good cause." " Id. (citations omitted).

ANALYSIS

1 8 Under the Speedy Trial Statute, when any Utah prisoner has an "untried indictment or information" and properly files a written demand "requesting disposition of the pending charge," that prisoner "shall be entitled to have the charge brought to trial within 120 days of the date of delivery" of the written demand. Utah Code Ann. § 77-29-1(1) (1999). However, either party may be granted a "reasonable continuance" to extend the 120-day period, but only "for good cause shown in open court." Id. § 77-29-1(8). If the prosecuting attorney does not bring the charge to trial within the required time period, the defendant may then move to dismiss the charge against him. See id. § 77-29-1(4). After reviewing the proceeding, "ilf the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause, whether a previous motion for continuance was made or not, the court shall order the matter dismissed with prejudice." Id.

T9 Houston argues that the trial court erred by denying his motion to dismiss under the Speedy Trial Statute. More specifically, Houston argues that because three separate delays in his proceeding were not supported by "good cause," they did not justify holding his trial outside the 120-day period under the Speedy Trial Statute. Id. § 77-29-1(8)(4). Because the delay attributable to defense counsel's unavailability is determinative of this appeal, we address only that issue. See State v. Heaton, 958 P.2d 911, 919 (Utah 1998) (stating that when one issue "is disposi-tive of [an] appeal, we need not address [defendant]'s other arguments").

$10 Determining whether the trial court erred by denying Houston's motion to dismiss pursuant to the Speedy Trial Statute "requires a two-step inquiry." Id. at 916. "First, we must determine when the 120-day period commenced and when it expired. Second, if the trial was held outside the 120-day period, we must then determine whether 'good cause' excused the delay." Id. Both parties agree that the 120-day period commenced on December 14, 2001 and, accordingly, we determine that it expired on April 13, 2002. Houston's trial began outside the 120-day period, on April 24. Therefore, we must "determine whether 'good cause' excused the delay" causing Houston's trial to be held outside the 120-day period. Id.

{11 "A finding of 'good cause' that will excuse failure of the prosecution to bring a defendant to trial within the time required means (1) delay caused by the defendant-such as asking for a continuance; or (2) 'a relatively short delay caused by unforeseen problems arising immediately prior to trial.' " State v. Coleman, 2001 UT App 281,¶ 6, 34 P.3d 790 (citations omitted), cert. denied, 42 P.3d 951 (Utah 2002). In addition, "extending the trial date to a reasonable time outside the {[120-day] period to accommodate, in part, defense counsel's schedule constitutes 'good cause' under [the Speedy Trial Statute]." Heaton, 958 P.2d at 917.

112 At Houston's arraignment, the trial court scheduled his trial to begin on March 18. However, at the pretrial conference, the trial court determined that the trial would need to be rescheduled to provide Houston with the full thirty-day notice period for the State's. expert witnesses, as required by statute. See Utah Code Ann. § T7-1'7-13(1)(a) (1999). Because the State had filed its "Notice of Expert Witnesses" on February 27, the trial could not begin until after the. thirty-day notice period expired on March 29. When the trial court initiated a rescheduling discussion with the parties at the pretrial conference, defense counsel preemptively notified the trial court that he would be unavailable during the week of April 1. The trial court then notified the parties that it was unavailable for trial dates during the weeks of April 8 and April 15. After some discussion, the trial court scheduled the trial to begin on April 24. The trial court recognized that this placed the trial outside of the 120-day period and made ree-ord of the scheduling problems by stating:

Let's set this for April 24, 25[,] and 26. And the record will reflect that [the beginning date] is past the 120-day [period].
The {[clourt knows that as we are doing it and [that] it's past the 30 days for the expert-witness notice. But it is the soonest I can set it on the calendar, given that the defense counsel is not going to be here the first week of April and the [weeks of the] 8th and 15th are master calendars for the [clourt.

(Emphasis added.)

18 This statement and defense counsel's preemptive notification of unavailability establish that the delay causing the trial to be held outside the 120-day period was caused, at least in part, by defense counsel's unavailability. Therefore, we conclude that, pursuant to the Speedy Trial Statute, "good cause" excused this delay. Id. § 77-29-1(8)(4); see Heaton, 958 P.2d at 917 ("[Elztending the trial date to a reasonable time outside the [120-day] period to accommodate, in part, defense counsel's schedule constitutes 'good cause' under [the Speedy Trial Statute].").

{14 Because we have determined that "good cause" excused the delay causing Houston's trial to be held outside the 120-day period, Utah Code Ann. § 77-29-1(8)(4), we conclude that the trial court did not abuse its discretion by denying Houston's motion to dismiss under the Speedy Trial Statute.

CONCLUSION

15 We conclude that the trial court did not abuse its discretion by denying Houston's motion to dismiss under the Speedy Trial Statute and, accordingly, affirm Houston's conviction.

16 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . In relevant part, the Speedy Trial statute provides:
      (1) Whenever a prisoner is serving a term of imprisonment in the state prison, jail or other penal or correctional institution of this state, and there is pending against the prisoner in this state any untried indictment or information, and the prisoner shall deliver to the warden, sheriff or custodial officer in authority, or any appropriate agent of the same, a written demand specifying the nature of the charge and the court wherein it is pending and requesting disposition of the pending charge, he shall be entitled to have the charge brought to trial within 120 days of the date of delivery of written notice.

      (3) After written demand is delivered as required in Subsection (1), the prosecuting attorney or the defendant or his counsel, for good cause shown in open court, with the prisoner or his counsel being present, may be granted any reasonable continuance.
      (4) In the event the charge is not brought to trial within 120 days, or within such continuance as has been granted, and defendant or his counsel moves to dismiss the action, the court shall review the proceeding. If the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause, whether a previous motion for continuance was made or not, the court shall order the matter dismissed with prejudice.
      Utah Code Ann. § 77-29-1(1), (3)-(4) (1999).

      . The parties disagree about the date the 120-day period expired. Houston asserts that it expired on April 12, while the State asserts that it expired on April 13. If December 14, 2001 is used as the starting date (day zero), then the 120-day period expired on April 13 (day: 120). In his reply brief, Houston agrees that this is the correct method for calculating the expiration of the 120-day period, yet still asserts that it expired on April 12. We agree with the State, and conclude that the 120-day period expired on April 13. Although the trial court erred by finding, in agreement with Houston's assertion, that the 120-day period expired on April 12, this error is harmless given the outcome of this appeal.

      . Houston does not argue that the length of the continuance was unreasonable.

      . In his briefs, Houston admits that the trial was scheduled outside the 120-day period "partly because the defense counsel was out[-Jof[-Itown for" the week of April 1, but argues that defense counsel's unavailability during that week "is irrelevant" because the trial court "did not discuss whether it was available for trial that week." At the pretrial conference, defense counsel preemptively notified the trial court that he was unavailable for trial during that week. As a result, it would have been pointless for the trial court to discuss its availability for trial that week.