author: RONALD J. STUBBLEFIELD, Trial Judge:

text:
    2004 OK CIV APP 43
    Woodie and Mary KIMBLE, husband and wife, Plaintiffs/Appellees/Counter-Appellants, v. John ARNEY, individually; and Arney & Milspaugh, a partnership, Defendants/Appellants/Counter-Appellees.
    No. 99,266.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    April 27, 2004.

      W. Brett Willis, Calvert Law Firm, Oklahoma City, OK, Stephen D. Beam, Weather-ford, OK, for Plaintiffs/Appellees.
    John B. Hayes, Hayes, Magrini & Gate-wood, Oklahoma City, OK, for Defendants/Appellants.
   Opinion by

RONALD J. STUBBLEFIELD, Trial Judge:

¶ 1 This is an appeal and counter-appeal from judgment entered on jury verdict in a multi-theory action against an attorney and his law partnership for damages. The defendant attorney and his firm appeal the money judgment on jury verdict, which was reduced on remittitur by the Trial Court. Plaintiffs counter-appeal the remittitur and, in the event of a possible reversal and remand by this Court, appeal the Trial Court’s dismissal at trial of certain of their causes/theories of recovery. Based on our review of the record on appeal and applicable law, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶2 Plaintiffs Woodie and Mary Kimble were neighbors and friends of Louise Ayres. They had a close relationship, and after Ayres was widowed she spent considerable time in the Kimble home. Evidence would establish that Ayres came to think of the Kimbles as her “kids.” In March 1995, Ayres asked Mr. Kimble to serve as her attorney in fact and to make an appointment with local attorney John Arney to draft the papers and to discuss her will. Arney had drafted several wills for Ayres and her husband, as well as for the Kimbles, and every will drafted by Arney for Ayres had included a provision for the Kimbles. Also included in provisions of prior wills was Ayres’ nephew, Joe Fred Lohrengel.

¶ 3 Mr. Kimble made the appointment, and Ayres and the Kimbles went to Arney’s office, where he practiced law in the partnership of Arney & Milspaugh. Testimony would establish that during this meeting Ayres was dressed neatly, acted alertly and seemed in control of the discussion. Ayres informed Arney that she wished to make Woodie Kimble her attorney-in-fact, and also wanted to review her prior will which had been executed in 1992. The 1992 will left the bulk of Ayres’ estate to Lohrengel. Upon review of the will with Arney, Ayres indicated her desire to change the instrument to leave 100% of the residuary estate, which contained a substantial sum of money, to the Kimbles rather than Lohrengel. However, Arney urged her to leave 25% of the residuary estate to Lohrengel, and Ayres agreed.

¶4 Sometime later in March 1995, Ayres and the Kimbles returned to Arney’s office and Arney led Ayres through the procedure of executing the power of attorney and the will. However, Arney told Ayres and the Kimbles that, because he had only one secretary in the office, Karen Muno, who would have to witness the will along with Arney, he could not have the will notarized at that time. He supposedly told the Kimbles that Ayres did not need to return but that one of them could pick up a copy of the will in a couple of days.

¶ 5 What happened next is in substantial dispute. Mrs. Kimble would testify that she returned to Arney’s office two days later and Arney handed her the will, making the statement: “I didn’t notarize it because I don’t want all the nieces and nephews in here throwing a fit whenever something happens to her.”

' ¶ 6 John Arney’s testimony would be. substantially different. He agreed that Ayres had appeared competent and mentally alert at the execution, and that the execution procedure went smoothly except that he had not been able to notarize the will because his only available notary was his. secretary and she had to act as a witness. However, he claimed that he had stated that Ayres was supposed to return in two days to complete the self-proving provision in the will. He also claimed that as Ayres left his office she made a statement to him that gave him “second thoughts.” He claimed she said: “I do not know why we are doing this. All I got is that little old house up there.” Arney knew that besides the house, Ayres had approximately $600,000 in cash assets received by inheritance. He testified that he thought he may have misjudged Ayres’ capacity, and that approximately two days later he told his secretary, Karen Muno, about the statement. However, he admits that he never told anyone except Muno about the statement, and he did nothing further in regard to the 1995 will. Arney additionally testified that neither Ayres nor the Kimbles ever returned to pick up the executed will. The Kimbles would testify that Ayres never made such a statement as Arney claimed.

¶ 7 Later, Ayres loaned the Kimbles $195,000 to pay off a livestock loan which had been called by their bank. Lohrengel heard of the loan, and wanted to recover the money for Ayres or her estate, and he contacted John Arney and asked him to file a guardianship proceeding against Ayres. Arney agreed, and he represented Lohrengel in an action in which Lohrengel was appointed Ayres’ guardian. Acting in that capacity, he sued the Kimbles to recover the $195,000.

¶ 8 Ayres passed away in 1998. Again Lohrengel hired Arney, this time to probate the 1992 will, which left Lohrengel the entire residual estate with an approximate value of $600,000. Arney, on behalf of Lohrengel, offered the 1992 will for probate, and the Kimbles offered the 1995 will. The probate court ruled that the 1995 will was not executed according to law and denied its admission, instead admitting the 1992 will as the valid last will and testament of Ayres. The Kim-bles then brought this lawsuit for damages against Arney and his firm (hereinafter collectively referred to as Arney), stating causes of action for malpractice (negligence), fraud/deceit, breach of contract and breach of fiduciary duty.

¶ 9 Arney .generally denied the allegations, claiming that (1) any defect in the will, or any controversy regarding its admissibility would have been cured if Ayres had returned to his office to execute the self-proving provision of the instrument; and (2) the 1995 will would have been accepted for probate if the proponents and their counsel had asked the proper questions at the hearing on the will, because Arney would have testified that all the statutory procedural requirements were followed at the time of the will’s execution.

¶ 10 The ease proceeded to jury trial, resulting in a verdict in favor of the Kimbles against Arney in the amount of $435,640.95. However, while the Trial Court denied Ar-ney’s motion for new trial and. motion for judgment notwithstanding the jury verdict, it sustained Arney’s motion for remission/re-mittitur, reducing the judgment to $279,090.13 or alternatively ordering a new trial. The Kimbles accepted the remittitur. Arney appeals and the Kimbles counter-appeal.

DISCUSSION OF ISSUES

I. Appeal of Arney

¶ 11 Arney states five propositions of error, which are all phrased as questions. We summarize these as contentions that the Kimbles did not meet their burden of proof, and that the Trial Court committed reversible error in admitting or refusing evidence and in instructing the jury.

A. The Sufficiency of the Evidence

¶ 12 The case was submitted to the jury only on the theories of attorney negligence and breach of contract.- However, the unanimous jury verdict is on a general verdict form, which does not detail any basis for the jury’s determination of liability or amount of damages. Thus, the challenge to the sufficiency of the evidence requires this Court to determine if the evidence supports either theory of recovery and the amount of damages as modified by remittitur by the Trial Court. We conclude the evidence supports the claim of attorney negligence.

B. Negligence

¶ 13 The plaintiff in a negligence action against an attorney must prove the existence of an attorney-client relationship, a breach of the attorney’s duty to the client, and a causal nexus between the attorney’s negligence and resulting injury. Worsham v. Nix, 2004 OK CIV APP 2, ¶ 6, 83 P.3d 879, 883. The existence of an attorney-client relationship is not disputed in this ease. The dispute is primarily over whether the Kim-bles demonstrated a breach of duty by Ar-ney.

¶ 14 Arney claims that the reason the 1995 will was not accepted for probate was not because of any legal negligence on his part, but because at the hearing on admission of the will counsel for the Kimbles never asked the right questions of the two subscribing witnesses. He claims they never asked him whether the will was executed according to statutory requirements (see 84 O.S.2001 § 55) and, if they had asked, he would have testified that it was. However, the findings of fact entered by the probate court, which were admitted into evidence in this negligence trial, indicate that the will was denied admission into probate because of defects in the execution. The probate court found:

1. The testimony of Karen Muño, a subscribing witness to the March 31,1995, will reveals that:
a) She cannot recall if John Arney, the other subscribing witness and the attorney who prepared the will, asked the testator any questions concerning the testator’s intentions and desires about the will; and
b) the testator gave no direct statements nor asked any questions during the execution of the will.
2. The testimony of John Arney, the other subscribing witness and the attorney who prepared the testator’s March 31, 1995, will, did not reveal that the testator ever clearly conveyed, in a way that reasonable minds would not differ, her thoughts and intentions about this will.

Certainly, there was evidence at trial in this case that the will was not executed according to law.

' ¶ 15 Expert testimony was given regarding the legal requirements for execution of a will, and one requirement was that the will must be signed in the presence of the subscribing witnesses. However, subscribing witness, Karen Muño, Arney’s secretary of nineteen years, testified that the will was not executed by Ayres in the presence of Arney and herself, and that the document was not even witnessed in the presence of Ayres. Muno also testified that at the urging of Arney and his counsel she had signed an affidavit to be used in the case which stated that the will had been properly executed and witnessed, but that she knew it was wrong.

¶ 16 In addition, Arney testified about his long-term acquaintance with Lohrengel, and also testified that, after drafting the 1995 will, he chose to represent Lohrengel in seeking a guardianship for Ayres and in presenting the 1992 will for probate, which placed him in the position of opposing admission of the 1995 will. We conclude this evidence supports a finding of breach of duty by attorney Arney.

C. Damages

¶ 17 “A jury verdict will be upheld against allegation that it is unsupported by evidence if there is any evidence which, if believed by the jury, is sufficient to support the verdict.” Rucker v. Mid Century Ins. Co., 1997 OK CIV APP 47, ¶ 18, 945 P.2d 507, 511. In this case, Arney does not specifically argue that the evidence does not support the amount of the verdict as modified by the Trial Court, and we find sufficient evidence supporting the judgment amount. The evidence supports conclusions that (1) Ayres was competent at the time of execution of the will and desired to leave 75% of her residual estate to her friends, the Kimbles; and (2) the amount of the estate would have been such that the Kimbles would have received several hundred thousand dollars if the will had been executed properly and admitted to probate. Based on these conclusions, we find the amount of the jury verdict, as modified by the Trial Court, to be supported by competent evidence.

D. Evidentiary Rulings

¶ 18 Arney next claims the Trial Court' erred in two evidentiary-related matters. Arney maintains that the Trial Court erred in denying admission of the transcript of the probate hearing on the 1995 will, and in admitting what he depicts as hearsay testimony from the Kimbles about purported statements made by Ayres.

¶ 19 “[E]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.” 12 O.S.2001 § 2104(A). The settled rule is that only those errors in admission or rejection of evidence which result in miscarriage of justice or constitute substantial violation of some constitutional or statutory right require reversal of a cause by this Court on appeal. Bond v. Bond, 1996 OK CIV APP 3, ¶ 19, 916 P.2d 272, 277.

¶ 20 Arney sought to admit, into evidence the transcript of the hearing on the issue of admission of the 1995 will to probate. The transcript of that hearing would have been hearsay testimony if admitted in the jury trial in this case. See Civil Serv. Comm’n of City of Tulsa v. Gresham, 1982 OK 125, ¶¶ 28-30, 653 P.2d 920, 925-26. Thus, it was not admissible absent some showing of an exception to the hearsay rule. Perhaps, more importantly, the admission of the evidence would have interjected into this trial additional testimony of the witnesses, Arney and Muno, from another proceeding which could have been highly confusing to the jury. In that regard, the Trial Court had the duty to determine if such evidence, even if determined to be admissible, should be excluded because of confusion of the issues. 12 O.S.2001 § 2403.

¶ 21 Upon our review, we cannot conclude that the Trial Court’s refusal to admit the evidence was error. The primary reason Arney wanted to admit the transcripts was to show that the Kimbles failed to ask certain questions regarding the legal sufficiency of the execution of the 1995 will. However, counsel addressed that issue in great detail in Arney’s testimony in this case, with the result that the jury was completely apprized of this contention. Accordingly, we do not find any reversible error in the Trial Court’s refusal to admit the transcript of the other hearing.

¶ 22 Arney also claims the Trial Court erred in allowing Mrs. Kimble to give hearsay testimony regarding purported statements of Ayres. Arney did not object to two statements by the witness — that Ayres requested the Kimbles to a make an appointment with Arney, and asked Mr. Kimble to consider acting as her attorney-in-fact; therefore, any claim of error has been waived. Rucker, 1997 OK CIV APP 47 at ¶ 15, 945 P.2d at 511. Another claimed interjection of hearsay was when Mrs. Kimble started to describe how Ayres had stated her dissatisfaction with Lohrengel’s handling of her business affairs. However, defense counsel’s objection interrupted her statement, and the Trial Court sustained the objection. Thus, there was no error in that instance.

¶23 Finally, the last statement complained to be hearsay was this:

A. [Mary Kimble] Well, whenever [attorney Arney] come to the door and told [Ayres] that he was ready for her, well, Woodie and I said we could just sit there, and she [Ayres] said, “No, I want you to come on in.”

Defense counsel objected to the statement without specifying the nature of the objection. Counsel for the Kimbles asserted the statement was admissible as a statement of the declarant’s state of mind, and it was ruled admissible by the Trial Court. We agree that the statement was admissible under 12 O.S.2001 § 2803(3).

¶ 24 The test of whether admission of irrelevant or otherwise inadmissible evidence created prejudice, and is grounds to reverse a jury verdict, is the likelihood the verdict would have been different had error not occurred, measured by the usual criterion of the verdict’s support in evidence. 12 O.S. 2001 § 78; James v. Midkiff, 1994 OK CIV APP 165, ¶ 6, 888 P.2d 5, 6. From our review of the transcripts of the trial, we simply do not find that any of these evidentiary matters would have changed the outcome of the trial.

E. Instructions

¶ 25 Arney’s final contention of error is that the Trial Court improperly instructed the jury by not crafting negligence instructions more specifically suited to this legal negligence case. Arney offered a four-page proposed instruction. However, the Trial Court gave general negligence instructions, Oklahoma Uniform Jury Instructions-Civil (Revised) (OUJI) Nos. 9.1, 9.2, and 9.6, and in addition gave OUJI No. 14.19 on duty of an attorney. It is the rule that unless an instruction, or the instructions taken as a whole, mislead a jury, there is no reversible error in faulty instructions as long as the verdict rests on competent evidence. In re S.D., 2003 OK CIV APP 22, ¶ 13, 66 P.3d 462, 467. In this case we cannot say that the Trial Court erroneously refused the voluminous instruction proffered by Arney. The instructions actually given adequately stated the appropriate law and were more concise and understandable by the jury. Taken as a whole, we do not find they were misleading. Accordingly, we reject this contention of error.

II. Counter-Appeal of the Kimbles

A. The Remittitur

¶ 26 The Kimbles first claim that the Trial Court erred in ordering the remitti-tur. However, they do not deny that they accepted remittitur rather than the alternative grant of a new trial. The common law rule is that a plaintiff who accepts remittitur in lieu of a new trial will not thereafter be heard in an appellate court to complain of his/her choice. Toews v. Funk, 129 Idaho 316, 924 P.2d 217 (Idaho Ct.App.1994). Based on that rule, Arney urges this Court to find that the Kimbles are barred from challenging the amount of the judgment on their counter-appeal. However, as the Kim-bles point out in their response, many states are abandoning the hard and fast common law rule and moving toward a more equitable maxim. Some states have, by decisional law, recognized a right to a direct appeal of a remittitur order which has been accepted. Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130 (1963). Other states have by judicial pronouncement recognized the right of a plaintiff to attack by counter-appeal an order of remittitur which has been accepted, if the defendant challenges the amount of the judgment on appeal. Mulkerin v. Somerset Tire Serv., Inc., 110 N.J.Super. 173, 264 A.2d 748 (1970). A number of states, which we shall not delineate, have modified the common law rule by statute or court rule.

¶ 27 There does not appear to be any published Oklahoma decision addressing this specific issue, but this Court concludes that the equities do tend to favor the rule that a plaintiff should have a right to counter-appeal regarding an accepted remitted judgment when the defendant challenges the amount of the judgment on appeal. The Supreme Court of Colorado stated the rationale supporting such a right:

In our view, cross-appeals of remittiturs should be permitted when the party for whom the remittitur was granted appeals on other grounds. The reasons supporting the traditional rule are not present when the plaintiff is forced into the position of responding to an appeal by the defendant. Judicial economy is best achieved by reviewing the remittitur judgment at the same time other issues in the case are resolved. A new trial may be completely avoided if the trial court’s order is found erroneous and the original verdict is reinstated. Moreover, such a rule encourages the defendant to pursue only meritorious appeals because of the chance that the appellate court may reinstate the original verdict while ruling against the appellant on all other issues.

Bums v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1355 (Colo.1983).

¶ 28 We agree with the Colorado court’s rationale, and reason that, if called upon to address the issue, the Oklahoma Supreme Court would recognize a right of counter-appeal by a plaintiff who has accepted a remitted judgment. Therefore, we conclude that the Kimbles are not barred from challenging the order of remittitur.

¶29 “Clearly, a remittitur may be granted for an error in the admission of testimony or for the giving of an erroneous instruction, but only so long as such errors affect the question of damages and not solely that of liability.” Strubhart v. Perry Mem. Hosp. Trust Auth., 1995 OK 10, ¶ 18, 903 P.2d 263, 270. A remittitur may be reversed for an abuse of discretion or because the trial court acted arbitrarily or capriciously. Id.

¶ 30 From the evidence, we do not find that the Trial Court abused its discretion. The testimony which served as the foundation of the Kimbles’ request for judgment in excess of $435,000, regarding the worth of the Ayres estate, included the amount of the $195,000 “loan” from Ayres to the Kimbles. However, evidence did tend to establish that this loan was or would be discharged in the Kimbles’ bankruptcy. Therefore, the evidence did not support the verdict, but did support the judgment after remittitur.

B. Prejudgment Interest

¶ 31 The Kimbles claim the Trial Court erred by not awarding them prejudgment interest under 12 O.S.2001 § 727(E), or 23 O.S.2001 § 6. Section 727(E) provides:

PREJUDGMENT INTEREST
E. Except as provided by subsection F of this section, if a verdict for damages by reason of personal injuries or injury to personal rights including, but not limited to, injury resulting from bodily restraint, personal insult, defamation, invasion of privacy, injury to personal relations, or detriment due to an act or omission of another is accepted by the trial court, the court in rendering judgment shall add interest on the verdict at a rate prescribed pursuant to subsection I of this section from the date the suit resulting in the judgment was commenced to the earlier of the date the verdict is accepted by the trial court as expressly stated in the judgment, or the date the judgment is filed with the court clerk.

Title 23 O.S.2001 § 6 provides:

Any person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt.

¶ 32 We do not believe that section 6 applies to this case because it generally applies in instances of liquidated damages. Damages subject to a fact-finder’s determination of reasonableness are not liquidated and not subject to prejudgment interest under section 6. Pierce Couch Hendrickson Baysinger & Green v. Freede, 1997 OK 33, ¶ 36, 936 P.2d 906, 914.

¶ 33 We believe the issue of entitlement to prejudgment interest under section 727(E) is settled by pronouncement of the Oklahoma Supreme Court in the professional malpractice case Stroud v. Arthur Andersen & Co., 2001 OK 76, 37 P.3d 783. The Court stated:

Plaintiffs claim that Andersen’s negligent conduct injured their “personal rights” thereby entitling them to receive prejudgment interest under the terms of 12 O.S. Supp.1997 § 727(E). The trial court denied their motion for the same. The Court does not find § 727(E)’s ambit to be as sweeping as the plaintiffs suggest. Were we to extend the reach of § 727’s provisions as requested, our decision would have the practical effect of extending the prejudgment-interest allowance to almost every prevailing party in a tort action. Such a result would eviscerate the legislatively-imposed limitations embodied in § 727’s provisions.
At common law judgments do not bear interest. Hence, recovery of interest on a judgment must be authorized by statute. The injuries of which both SCI and Stroud complain are injuries to business assets, i.e., property. When in 1984 the Court first considered whether a negligence claim involving an injury to property was a “personal injury” under the provisions of § 727 then in effect, it held it was not and that prejudgment interest was unavailable. The statutory amendments to § 727 enacted since then do not persuade the Court that the Legislature intended to extend the Court’s earlier definition of “personal” to include injury to property. An economic loss emanating from a business venture does not qualify as a personal injury under § 727(E)’s provisions and, hence, does not meet the statutory requirement for an award of prejudgment interest. The trial court’s denial of prejudgment interest is sustained.

Id. at ¶¶ 35-36, 37 P.3d at 794-95 (footnotes omitted). Based on these two pronouncements by the Oklahoma Supreme Court we conclude that the Trial Court did not err by refusing to award prejudgment interest.

C. Alternative Claims of Error

¶ 34 We do not address the Kimble’s claims of lower court error in striking certain of their theories of recovery. Those contentions of error were stated to apply only if this Court were to vacate the judgment on jury verdict. We have not done so.

CONCLUSION

¶ 35 We find none of Arney’s contentions of error availing of reversal and further find the judgment on jury verdict supported by competent evidence. Likewise, we find no support for the contention of error asserted in the Kimbles’ counter-appeal. Therefore, the judgment of the Trial Court is affirmed in all regards.

¶ 36 AFFIRMED.

TAYLOR, P.J., and GOODMAN, J., concur.

      . The Court in Plesko rationalized that it would be unfair to allow a defendant who receives the benefit of remittitur to also have the sole opportunity to appeal all issues without the risk that the original verdict might be reinstated. Id. at 135.

      . An analysis of the development of changes in the common law rule is found in Cmt. Note, Annotation, Party’s Acceptance of Remittitur in Lower Court as Affecting His Right to Complain in Appellate Court as to Amount of Damages for Personal Injury, 16 A.L.R.3d 1327 (1967).

      . Evidence indicated that the parties settled Loh-rengel’s suit (as Ayres’ guardian) against the Kimbles to recoup the $195,000 Ayres had given them to settle their cattle debt. To settle the matter, the Kimbles gave a note to Lohren-geJ/Ayres' estate for that amount.


source: Caselaw Access Project

author: WILKINS, Justice:

license: Public Domain

text:
    2004 UT 33
    Keith CARTER, Plaintiff and Appellant, v. D. Stephen SORENSEN, Defendant and Appellee.
    No. 20020688.
    Supreme Court of Utah.
    April 20, 2004.
    James R. Hasenyager, Ogden, for plaintiff.
    Richard K. Chamberlain, Richfield, for defendant.
   WILKINS, Justice:

¶ 1 Keith Carter appeals the trial court’s dismissal of his lawsuit, arguing that the court incorrectly concluded that he failed to exercise an option to purchase property, and that the trial court’s finding that it could not determine the option price was incorrect. We affirm on other grounds, because there was no enforceable option agreement between the parties. Given this disposition, we need not address Carter’s other points on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Carter was a farmer and rancher whose property, which included certain water rights, was foreclosed upon by the Farmers Home Administration (“FHA”). D. Stephen Sorensen, a potential buyer of the property, agreed that if he purchased the property he would grant Carter an option to repurchase all or part of it for the same price Sorensen paid. Sorensen’s purchase was completed in March of 1996 for the price of $355,000, determined pursuant to an FHA appraisal. That appraisal estimated the value of Carter’s property using each of the traditional appraisal methods — the cost approach, the income approach, and the sales comparison approach. In the sections evaluating each approach, the appraisal identified separate values for different portions of the property based on their character as irrigated, grazing, or pasture land. No specific values were given for the water shares. Likewise, the values given for each type of land in the income approach differed from those given in the other approaches. The appraiser’s ultimate conclusion about the value of the land— the basis for Sorensen’s price — is unaccompanied by any recitation of the relative values of each type of land.

¶ 3 Carter’s option was valid until May 31, 1999. Prior to the option’s expiration, Carter purchased a portion of the property back from Sorensen at a price agreed upon by the parties. That portion of the property included some, but not all, of the water shares that Sorensen originally acquired. Carter later indicated a desire to purchase the remaining water shares pursuant to the option.

¶ 4 Wishing to ascertain the price Soren-sen paid for the water shares alone, Carter asked Eric Johnson, who prepared the FHA appraisal on the property at the time of Sorensen’s purchase, to deduce the price of each water share. Johnson, calling his estimate a consultation, not an appraisal, opined that each water share was worth $800. Carter then attempted to exercise the option to purchase the remaining twenty-six water shares at $800 per share. Sorensen was not willing to sell the shares at that price, instead arguing that he paid $47,000 for the shares, over $26,000 above the price Carter offered. Ten days before the option was set to expire, Carter deposited $20,800 into an escrow account for purchase of the water shares at the $800 price. Although Sorensen was notified of the deposit, he refused to transfer the shares, and Carter sued.

¶ 5 During the course of proceedings below, Johnson testified that his initial figure of $800 per share was based on calculations containing a mathematical error, and that the actual figure he would have used as an estimate of the value of each water share was $1,800. The trial court ultimately refused to enforce the option against Sorensen. It held that Carter missed the option deadline by not tendering Sorensen’s $47,000 price before expiration of the option. The court further noted that it could not determine the price for the water shares.

ANALYSIS

I. STANDARD OF REVIEW

¶ 6 We determine the existence of a contract, such as an option agreement, by resorting to principles of law; therefore, we grant no deference to the trial court that originally decided the matter. See Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 17, 989 P.2d 1077.

II. EXISTENCE OF OPTION

¶ 7 A contract, such as an option, must have definite terms, including the option price, or else it cannot be enforced by a court. Nielsen v. Gold’s Gym, 2003 UT 37, ¶ 11, 78 P.3d 600. Because the parties’ purported agreement for Carter to buy back any portion of the property Sorensen purchased contains no ascertainable price term, the agreement is unenforceable and the trial court’s order must be affirmed.

¶ 8 The parties clearly intended to create an enforceable option agreement allowing Carter to buy back all or part of his farm from Sorensen. However, as a matter of law, they failed to do so because they did not include an identifiable price term for a purchase of less than the entire property. Although the agreement included language purporting to set the price at “the same price [Sorensen paid] to the FHA,” that price is elusive.

¶ 9 Sorensen purchased the property from the FHA, which set the purchase price after reviewing Johnson’s appraisal. The “price [Sorensen paid] to the FHA” was not required to be the value set by the appraisal, but the FHA apparently agreed with Johnson’s conclusion and set the price at $355,000. The appraisal report contained assessments of the property’s value utilizing the cost, income, and sales comparison approaches. Although the appraisal contained itemized values for portions of the property of differing character, these values are of no assistance in determining what price Sorensen paid for discrete portions of the property, including the water shares.

¶ 10 The application of the cost, income, and sales comparison approaches to valuation resulted in three different conclusions regarding the value of the property. Under the cost approach, Johnson valued the property at $369,300, while the income approach yielded a value of $319,000, and the sales comparison approach resulted in a value of $358,000. Johnson adopted none of these three methods, instead valuing the property at $355,000. Johnson’s ultimate conclusion that the value of the property was $355,000 is unaccompanied by any itemized list of values for discrete portions of the property or any explanation of his methodology. Given that none of the approaches was adopted, it follows that the itemized values found in Johnson’s evaluation of each of those approaches are of no utility in determining the value of the water shares, or any other fraction of Sorensen’s purchase.

¶ 11 Ignoring the itemized values in Johnson’s appraisal, as we must, what is left is the sole fact that Sorensen paid $355,000 for the entire property. There exists no mechanism for determining what price Sorensen paid for any fraction of the property. The trial court faced this problem and, despite hearing all the evidence on the matter, ultimately concluded that it could not determine a price. We agree with the trial court that the price of the water shares is not ascertainable. The legal consequence of a missing price term is the unenforceability of the agreement. Id. at ¶¶ 11-12. Accordingly, although the trial court’s disposal of the case appears to be premised on Carter’s failure to exercise the option, the absence of a price term is the basis for our decision to affirm the trial court. See, e.g., State v. Topanotes, 2003 UT 30, ¶ 9, 76 P.3d 1159.

CONCLUSION

¶ 12 Because the parties’ agreement contains no price term, it is unenforceable and Carter’s claim was rightly dismissed by the trial court. Affirmed on other grounds.

¶ 13 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS’ opinion.


author: PARRISH, Justice:

text:
    2004 UT 36
    STATE of Utah, Plaintiff and Appellee, v. ONE LOT OF PERSONAL PROPERTY, Defendant. Theodore McKinley and Christine McKinley, Real Parties in Interest and Appellants.
    No. 20020290.
    Supreme Court of Utah.
    April 30, 2004.

      David E. Yocom, Christopher G. Bown, Chad L. Platt, Salt Lake City, for plaintiff.
    Frank D. Mylar, Salt Lake City, for appellants.
   PARRISH, Justice:

¶ 1 Theodore and Christine McKinley appeal from the district court’s denial of then-motion for attorney fees. The McKinleys defended their interest in a piece of real property against a forfeiture claim brought by the State of Utah pursuant to section 58-37-13 of the Utah Controlled Substances Act. After the State dismissed its forfeiture claim against the McKinleys’ property, the McKin-leys sought an award of attorney fees under Utah Code section 24-1-11, which was enacted after the events giving rise to the forfeiture action but prior to the filing of the forfeiture complaint. Alternatively, the McKinleys sought attorney fees under Utah Code section 78-27-56. We hold that the district court erred in denying the McKin-leys’ request for attorney fees under section 24-1-11 and therefore reverse the district court’s ruling.

BACKGROUND

¶2 Sometime prior to February 2001, Theodore McKinley'agreed to sell to Herman Drain real property located at 1357 West Crystal Avenue in West Valley City. Drain and his associate, Louis Acevedo, were suspected by the West Valley Police Department of producing and distributing methamphetamine. In connection with the police department’s investigation of the suspected illegal drug trafficking, officers obtained warrants to search five properties, including the Crystal Avenue property. The searches took place on February 9, 2001, and resulted in the seizure of automobiles, cash, and other items of personal property.

¶3 Near the time of the searches, two detectives contacted Mr. McKinley to discuss the Crystal Avenue property. Mr. McKinley showed the detectives a bill of sale for the property and explained that Drain had paid him $30,000 in cash for the property, but still owed another $10,000. In view of this information, the detectives believed the Crystal Avenue property likely constituted proceeds of illegal drug trafficking, rendering it subject to forfeiture under section 58-37-13 of the Utah Controlled Substances Act. Utah Code Ann. § 58-37-13 (2002).

¶ 4 The State filed a forfeiture complaint with the district court on March 30, 2001. The complaint listed the Crystal Avenue property among the numerous assets allegedly forfeited. When the McKinleys learned of the forfeiture action, they hired an attorney and asserted their interest in the property. On April 30, 2001, the State filed a motion to dismiss the property from the action. Pursuant to the State’s motion, the district court issued an order of dismissal on May 8, 2001.

¶ 5 Following resolution of the forfeiture action, the McKinleys moved for attorney fees. The McKinleys claimed they were entitled to an award of attorney fees under section 24-1-11 of the Utah Uniform Forfeiture Procedures Act, which took effect on March 29, 2001 — the day before the State filed its forfeiture action. Alternatively, the McKin-leys argued that the State had acted in bad faith by including their property in the forfeiture action, thus entitling them to an award of attorney fees pursuant to section 78-27-56 of the Utah Code. Utah Code Ann. § 78-27-56 (2002).

¶ 6 The district court denied the McKin-leys’ motion for attorney fees on both grounds. It ruled that section 24-1-11 of the Utah Code did not apply because it was not in effect on the “date of seizure or violation” in this case, which, according to the court, was February 9, 2001. The court further found that section 24-1-11 constituted a substantive change in the law that could not be applied retroactively. The district court denied the McKinleys’ claim for fees under Utah Code section 78-27-56 based on its finding that the State had not acted in bad faith.

¶ 7 The McKinleys now appeal the district court’s denial of their motion for attorney fees. They argue that the district court erred in not applying section 24-1-11 of the Utah Code. Alternatively, they argue that the district court erred in not awarding attorney fees under Utah Code section 78-27-56. This court has jurisdiction over their appeal pursuant to Utah Code section 78-2-2(3)(j). Utah Code Ann. § 78-2-2(3)(jX2002).

ANALYSIS

¶ 8 We first address the McKinleys’ claim for attorney fees under section 24-1-11 of the Utah Code, which took effect just one day prior to the filing of the State’s forfeiture complaint. Whether the court erred in failing to apply section 24-1-11 presents a question of law that we review for correctness, giving no deference to the district court. See State v. Gutierrez, 972 P.2d 913, 914-15 (Utah 1998) (“The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court’s legal conclusion.”); accord State v. Pena, 869 P.2d 932, 936 (Utah 1994).

¶ 9 Section 24-1-11 provides:

In any civil or criminal proceeding to forfeit seized property under this chapter, the court shall award a prevailing owner reasonable attorneys’ fees and other costs of suit reasonably incurred by the owner. An owner who prevails only in part shall be entitled to recover reasonable attorneys’ fees and reasonable costs of suit related to those issues on which he prevailed.

Utah Code Ann. § 24-1-11 (2003).

¶ 10 The district court ruled that section 24-1-11 did not apply in this case because it was not in effect on the “date of seizure or date of violation,” which the court identified as February 9, 2001. The district court further ruled that the statute could not be applied retroactively because it constituted a substantive change to the prior law. See Olsen v. McIntyre, 956 P.2d 257, 261 (Utah 1998) (“A long-standing rule of statutory construction is that we do not apply retroactively legislative enactments that alter substantive law or affect vested rights unless the legislature has clearly expressed that intention.”).

¶ 11 The McKinleys have not appealed the district court’s ruling regarding retroactive application of the statute. Instead, they argue that the district court erred in looking to the “date of seizure or date of violation” in determining whether to apply the statute to this case. They argue that the statute should apply to this case because it was in effect both when the State filed its forfeiture complaint and when they incurred the attorney fees at issue.

¶ 12 The State argues that the district court was correct in its ruling because this case should be controlled by the statutes in effect at the time the forfeiture claim arose. According to the State, the forfeiture claim arose on February 9, 2001 — the date on which the search warrants were executed— when the State had sufficient information to pursue the action to a successful conclusion. See Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 364 (Utah 1997) (“The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.” (citation and quotation omitted)).

¶ 13 The State relies on cases in which we have identified controlling law by looking to the date on which a cause of action first accrued. In State v. Lusk, this court explained that in deciding whether to apply an amended statute of limitations, we look to the date the cause of action accrued and consider whether the original statute of limitations had run prior to enactment of the amended statute. 2001 UT 102, ¶¶ 25-31, 37 P.3d 1103. In Stephens v. Henderson, we declined to apply the Liability Reform Act to a tort claim because the Act was not in effect when the injured plaintiffs cause of action arose (i.e., the date of the accident), and because the statute could not be applied retroactively. 741 P.2d 952, 953-55 (Utah 1987); see also Olsen, 956 P.2d at 261 (“[I]n workers’ compensation cases, we generally apply the law in effect at the time of the employee’s injury.”).

¶ 14 We find that the McKinleys’ claim for attorney fees differs in nature from the cases involving application of statutes of limitation or substantive tort law on which the State relies. The McKinleys’ claim for attorney fees in this case is analogous to claims for attorney fees under the federal Prison Litigation Reform Act of 1995 (the “PLRA”), which altered the availability of attorney fees in prisoner civil rights suits. 42 U.S.C. § 1997e(d)(3) (1996). In determining whether to apply the PLRA, courts have looked not to the date of the alleged deprivation of civil rights, but to the date on which the attorney fees were incurred.

¶ 15 When Congress passed the PLRA, it included no directives as to whether or how the PLRA’s attorney fees provisions should be applied to pending cases. Martin v. Hadix, 527 U.S. 343, 353, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999). Federal courts of appeal generally agreed that the PLRA provisions could not be applied retroactively, but disagreed over the event within the litigation process that marked the point following which the PLRA could apply. See Winters v. Sissel, 167 F.3d 413, 413-14 (8th Cir.1999) (reviewing contrasting approaches to the issue among the circuits). For example, the Fourth Circuit held that the PLRA could be applied as long as the attorney fees were awarded after the date of the PLRA’s enactment, see id., 167 F.3d at 414 (citing Alexander S. v. Boyd, 113 F.3d 1373, 1386 (4th Cir.1997)), while the Sixth Circuit held that the PLRA could be applied as long as the action had been commenced subsequent to the PLRA’s enactment, see id. (citing Hadix v. Johnson, 143 F.3d 246, 255-56 (6th Cir.1998)).

¶ 16 The United States Supreme Court resolved the split of authority among the circuits in Martin. In that case, the Supreme Court identified the date on which an attorney performed work as the reference point for determining whether to apply the fee provisions of the PLRA. Martin, 527 U.S. at 347, 119 S.Ct. 1998. It held that the provisions applied to all work performed by an attorney following the PLRA’s enactment, but did not apply to work performed prior to its enactment because such application would produce impermissible retroactive effects. The Supreme Court reasoned that “[o]n April 26, 1996, through the PLRA, the plaintiffs’ attorneys were on notice that their hourly rate had been adjusted. From that point forward, they would be paid at a rate consistent with the dictates of the law.” Id. at 361, 119 S.Ct. 1998. “In other words,” explained the Court, “as applied to work performed after the effective date of the PLRA, the PLRA has future effect on future work; this does not raise retroactivity concerns.” Id. at 362, 119 S.Ct. 1998.

¶ 17 Similarly, in this ease, we are asked to apply an attorney fee statute that contains no express legislative directive as to its temporal reach. Consistent with the Supreme Court’s reasoning in Martin, we find it appropriate to apply the statute to attorney fees incurred subsequent to March 29, 2001, the statute’s effective date. As of that date, the State was on notice that it could be liable for attorney fees incurred by a party who successfully defended a forfeiture action. In this case, not only were the McKinleys’ fees incurred after the statute’s effective date, but the State did not even commence the forfeiture action until after the effective date. See also Utah Safe to Learn-Safe to Worship Coalition, Inc. v. State, 2004 UT 32, ¶ 15, 94 P.3d 217 (finding prospective rather than retroactive application of statutory initiative requirements).

¶ 18 The State argues that even if section 24-1-11 applies to this case, the McKinleys are not entitled to recover their attorney fees because they were not prevailing parties in the forfeiture action. In so arguing, the State relies on Ault v. Holden, in which we stated that “to be a prevailing party, a party ‘must obtain at least some relief on the merits’ of the party’s claim or claims.” 2002 UT 33, ¶ 48, 44 P.3d 781 (quoting Crank v. State Judicial Council, 2001 UT 8, ¶ 38, 20 P.3d 307 (citing Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“To qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim.”))). The State contends that the McKinleys did not obtain any relief on the merits because the State voluntarily dismissed the forfeiture claim before it was addressed by the district court. We disagree.

¶ 19 The fact that the State recognized the apparent weakness of its claim and voluntarily dismissed it before the district court had an opportunity to do likewise does not relieve the State of its obligation to reimburse the McKinleys for their attorney fees. Any other rule would be fundamentally unfair to those defendants who are required to incur substantial fees defending a plaintiffs non-meritorious claims up to the point of the plaintiffs voluntary dismissal.

¶ 20 Our conclusion in this regard is consistent with cases from the Tenth Circuit that have decided the issue in the context of rule 54(d) of the Federal Rules of Civil Procedure. See Aerotech, Inc. v. Estes, 110 F.3d 1523, 1527 (10th Cir.1997); Cantrell v. InCl Bhd. of Elec. Workers, 69 F.3d 456, 456 (10th Cir.1995). Rule 54(d) provides that a prevailing party is typically entitled to recover costs. It also specifies the procedure litigants should follow when seeking awards of attorney fees. Fed.R.Civ.P. 54(d).

¶ 21 In Cantrell, the Tenth Circuit considered whether a defendant is a prevailing party under rule 54 when a plaintiff voluntarily dismisses its case prior to trial. 69 F.3d at 456. The court held that “a defendant is a prevailing party under Rule 54 when, in circumstances not involving settlement, the plaintiff dismisses its case against the defendant, whether' the dismissal is with or without prejudice.” Id. The Tenth Circuit reaffirmed this holding in Aerotech when it stated that the “mere fact that [the plaintiff] dismissed [the defendant] early in the litigation is insufficient to warrant a denial of costs. Nothing in Rule 54(d) or our case law suggests that we should penalize a party for prevailing early.” 110 F.3d at 1527.

¶ 22 We hold that the McKinleys are prevailing parties and that they therefore are entitled 'to an award of attorney fees for work performed subsequent to the enactment of section 24-1-11. We remand to the district court for a determination of the appropriate amount.

¶23 Having determined that the district court erred in failing to apply section 24-1-11 to this case, we need not reach the McKin-leys’ argument that the district court erred in failing to award fees under section 78-27-56. Nor do we need to address the McKin-leys’ additional claim that no valid seizure of the real property occurred and that the district court therefore could not rely on the date of seizure to determine controlling law.

CONCLUSION

¶ 24 We hold that the district court erred in failing to apply Utah Code section 24-1-11, which provides that a prevailing owner in a forfeiture proceeding may recover attorney fees. Although the statute was not in effect when officers executed a search warrant on the McKinleys’ property, the statute was in effect both when the State filed its forfeiture action and when the McKinleys incurred attorney fees to defend their ownership interest. We also hold that the State’s voluntary dismissal of the McKinleys’ property from the forfeiture action does not prevent the McKinleys from qualifying as prevailing parties. Accordingly, we hold that the McKin-leys are entitled to an award of attorney fees for work performed subsequent to March 29, 2001,' the effective date of section 24-1-11 of the Utah Code. We reverse the decision of the district court and remand for further proceedings consistent with this opinion.

¶ 25 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice NEHRING concur in Justice PARRISH’s opinion. .

      . Although the notes to Utah Code section 24-1-11 specify March 20, 2001 as its effective date, the statute actually took effect on March, 29, 2001, due to a temporary restraining order issued by federal district Judge Dee Benson that delayed its implementation. Utah Code Ann. § 24-1-11 (2002); Kennard v. State, No. 01-CV-00171-B (D.Utah Mar. 20, 2001); see also Kennard v. Leavitt, 246 F.Supp.2d 1177, 1181 (D.Utah 2002).

      . The Supreme Court’s reasoning paralleled that of the Eighth and D.C. Circuits. See Williams v. Brimeyer, 122 F.3d 1093, 1094 (8th Cir.1997) ("We hold that the [PLRA] applies to all hours worked in this case after the: date of the passage of the Act. This is not a 'retroactive' application of the new law."); Inmates of D.C. Jail v. Jackson, 158 F.3d 1357, 1360 (D.C.Cir.1998) ("When it is applied to work performed after the effective date of the Act, the PLRA [raises no retroactivity concerns] because the statute creates present and future effects on present and future conduct, and has no effect on past conduct. The fees at issue were earned after the PLRA passed. The PLRA does not in this case upset vested interests because no right to a fee existed until the work was done.” (citations omitted)).


author: BILLINGS, Presiding Judge:

text:
    2004 UT App 102
    STATE of Utah, Plaintiff and Appellee, v. Scott Alan WRIGHT, Defendant and Appellant.
    No. 20010345-CA.
    Court of Appeals of Utah.
    April 8, 2004.
    Margaret P. Lindsay and Patrick V. Lindsay, Adrieh, Nelson, Weight & Esplín, Provo, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, P.J., DAVIS, and GREENWOOD, JJ.
   OPINION

BILLINGS, Presiding Judge:

¶ 1 Defendant Scott A. Wright appeals his conviction and sentence following his guilty plea for operation of a clandestine laboratory within 500 feet of a residence, a first degree felony. Wright argues that he was denied effective assistance of counsel because his counsel failed to present relevant mitigating evidence at sentencing. We affirm.

BACKGROUND

¶ 2 Wright pleaded guilty to operating a clandestine laboratory in violation of Utah Code Annotated section 58-37d-4(l)(a) and (b) (Supp.2000), a second degree felony, enhanced to a first degree felony pursuant to Utah Code Annotated section 58-37d-5(d) and (f) (Supp.2000) for operating within 500 feet of a residence. The Honorable Pat B. Brian sentenced Wright to the Utah State Prison for an indeterminate term of five years to life with 170 days credit for time served.

¶ 3 Wright appealed his conviction and subsequently filed a motion for remand pursuant to rule 23B of the Utah Rules of Appellate Procedure, alleging that his trial counsel was ineffective by inadequately advising him on the elements of the offense to which he entered a guilty plea and in her representation of him at sentencing. We refused to address Wright’s challenge to the validity of his guilty plea because Wright did not file a timely motion to withdraw his plea under Utah Code Annotated section 77-13-6 (1999). However, we remanded to the trial court for entry of findings of fact relevant to the claim that trial counsel rendered ineffective assistance at sentencing. In particular, we instructed the trial court to determine: (1) what efforts were undertaken by Wright’s counsel in preparation for sentencing and what additional efforts she could have undertaken; (2) what were counsel’s reasons for handling sentencing as she did; (3) what other information applicable to sentencing could have been discovered by Wright’s counsel prior to sentencing; and (4) whether the omission of the supplementary information was prejudicial to Wright at sentencing.

¶ 4 The Honorable Michael K. Burton presided over two evidentiary hearings on July 12, 2002, and August 23, 2002, and issued Findings on Remand on December 3, 2002. Judge Burton made, among others, the following findings regarding the efforts taken by sentencing counsel in preparation for Wright’s sentencing: (1) she received and reviewed the presentenee report the night before the sentencing hearing; (2) she read through the presentenee report with Wright for approximately fifteen minutes; (3) she spoke briefly with Wright’s sister; and (4) she made notes on her copy of the presen-tence report in preparation for her argument.

¶ 5 Judge Burton found that counsel could have undertaken additional efforts in preparation for Wright’s sentencing. Specifically, he found that counsel could have presumed prison was the most likely outcome and prepared a detailed and cohesive outline of her argument accordingly. In addition, Judge Burton found that sentencing counsel did not follow her typical practice in preparation for sentencing by failing to (1) review the pre-sentence report in careful detail; (2) compare facts contained in the presentence report with those documented in her file; (3) contact Wright’s previous employers; (4) interview Wright’s family in preparation of sentencing; (5) meet with and interview Wright’s children and the mother of his children; (6) review the presentence report in careful detail with Wright; and (7) collect and present to the court, counsel, and Adult Probation and Parole, letters of support from Wright’s family, friends, and employers. Finally, Judge Burton noted that sentencing counsel testified that she did not believe she had properly represented Wright at sentencing and that she should have offered testimony from his family, friends, and employers who would have characterized Wright as honest, hardworking, and trustworthy.

¶ 6 Judge Burton stated in his Findings on Remand that Judge Brian had testified that none of the evidence Wright contends should have been presented at sentencing would have resulted in a lesser sentence. In particular, Judge Brian testified that he believed Wright had played a major role in the operation of the clandestine lab because manufacturing paraphernalia had been discovered in his bedroom and Wright had been familiar with the location of chemicals and waste materials in other parts of the home. Judge Brian explained that the large amount of methamphetamine and precursor chemicals confiscated from Wright’s home and the fact that there were children present when the search warrant was executed weighed heavily in favor of prison time. Additionally, Judge Brian testified that because Wright was “up to his armpits” in manufacturing methamphetamine, mitigating evidence regarding his character, work ethic, and family support would not have made any difference in the sentence imposed in light of the seriousness of his crime. Wright appeals.

ISSUE AND STANDARD OF REVIEW

¶ 7 Wright argues that he was denied his Sixth Amendment right to effective assistance of counsel at sentencing. “In ruling on an ineffective assistance claim following a [r]ule 23B hearing, ‘we defer to the trial court’s findings of fact, but review its legal conclusions for correctness.’ ” State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct.App.1998) (quoting State v. Classon, 935 P.2d 524; 531 (Utah Ct.App.1997)).

ANALYSIS

¶ 8 Wright asserts that sentencing counsel was ineffective in her representation of him because she failed to' present relevant mitigating evidence at sentencing. In particular, Wright argues that counsel should have presented character witnesses who would have demonstrated his life history, work history, and family support. Wright further argues that counsel failed to offer sufficient evidence regarding Wright’s limited involvement in operating the’ clandestine lab. Wright asserts that had sentencing counsel presented this evidence, his sentence would have been less severe.

¶ 9 To establish ineffective assistance of counsel, Wright must meet both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “ ‘To prevail, a defendant must show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel’s performance prejudiced the defendant.’ ” Carter v. Galetka, 2001 UT 96,¶ 31, 44 P.3d 626 (alteration omitted) (quoting Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994)). “ ‘[Bjecause a defendant has the burden of meeting both parts of the Strickland test, it is unnecessary for this court to apply both parts where our inquiry reveals that one of its parts is not satisfied.’ ” State v. Mecham, 2000 UT App 247, ¶ 21, 9 P.3d 777 (alteration in original) (quoting State v. Marvin, 964 P.2d 313, 315 (Utah 1998)). Because we conclude that counsel’s conduct did not prejudice Defendant at sentencing, we do not analyze counsel’s performance in detail but rather simply assume it was deficient. See Parsons v. Barnes, 871 P.2d 516, 523 (Utah 1994) (“When it is ‘easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,’ we will do so without addressing whether counsel’s performance was professionally reasonable.” (quoting Strickland, 466 U.S. at 697, 104 S.Ct. at 2069)).

¶ 10 Wright argues that counsel failed to present to the sentencing court several mitigating factors rendering her performance objectively deficient and prejudicial. First, Wright asserts that counsel failed to inform the court of the circumstances surrounding Wright’s mother’s death. Specifically, Wright blames himself for his mother’s death because he distracted her while she was driving, which resulted in the accident that caused her death. Counsel only informed the court that his mother’s death occurred when Wright was very young and failed to explain the impact this had on Wright.

¶ 11 Second, Wright claims that counsel failed to present evidence regarding the physical and mental abuse he had suffered at the hands of his alcoholic and drug-addicted father. In particular, Wright asserts that counsel should have explained to the court that growing up with his father was a “living hell” and that he had lived in great fear of his father during childhood. Instead, counsel merely stated that his father was a long-term alcoholic and drug addict.

¶ 12 Third, Wright argues that his counsel failed to inform the court that Wright had been sexually abused as a child, contrary to the presentence report. Wright asserts counsel should have disclosed this abuse, as well as the impact the abuse had upon Wright.

¶ 13 Fourth, Wright asserts that counsel failed to adequately inform the court of his personal character and the support he received from family and friends. Specifically, Wright claims that his counsel should have interviewed and presented letters and/or testimony from family, friends, and employers regarding his character.

¶ 14 Finally; Wright argues that counsel failed to correct the court’s false presumption that Wright was heavily involved in the operation of the clandestine lab and the distribution of methamphetamine. . Wright further asserts that counsel should have provided affidavits or testimony to support her statement at sentencing that Wright had a “lack of knowledge as to the cooking process.”

¶ 15 To satisfy the prejudice prong of the Strickland test, “it is not enough to show that the alleged errors had some conceivable effect on the outcome of the trial but, rather, defendant must show that a reasonable probability exists that, but for counsel’s error, the result would have been different.” State v. Pursifell, 746 P.2d 270, 275 (Utah Ct.App. 1987) (quotations and citations omitted). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the reliability of the outcome.’ ” State v. Classon, 935 P.2d 524, 532 (Utah Ct.App.1997) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)).

¶ 16 Wright cites -two death penalty eases in support of his argument. First, Wright claims that his background is similar to that of the defendant in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Wiggins, the United States Supreme Court held that defense counsel should have discovered the following relevant mitigating evidence and that a reasonably competent attorney would have introduced it at sentencing:

Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time Wiggins spent homeless, along with his diminished mental capacities, further augment his mitigation case.

Id. at -, 123 S.Ct. at 2542. The Court concluded that Wiggins “has the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability” and that “had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.” Id. at -, 123 S.Ct. at 2542-43.

¶ 17 Second, Wright asserts that the facts in Armstrong v. Dugger, 833 F.2d 1430 (11th Cir.1987), also are similar to this case. In particular, Wright explains that Armstrong’s trial counsel presented only one mitigation witness and failed to present his history of nonviolence and religious activities, his childhood of poverty, his irregular school attendance due to the need to supplement his grandmother’s income, and his epileptic seizures and mental retardation. See id. at 1433-34. The Eleventh Circuit held that Armstrong’s inexperienced trial counsel failed to provide the jury with evidence that focused on the particularized characteristics of Armstrong and concluded that “the demonstrated availability of undiscovered mitigating evidence clearly met the prejudice requirement” under Strickland. Id.

¶ 18 The State argues that the evidence Wright maintains should have been presented to the sentencing court is unlike the relevant evidence in both Wiggins and Armstrong. We agree. Unlike the defendants in Wiggins and Armstrong, Wright was not facing the possibility of the death penalty. See Wiggins, 539 U.S. at -, 123 S.Ct. at 2531; Armstrong, 833 F.2d at 1432. Thus, while Wright’s crime is serious, it does not rise to the level of a capital crime where mitigating evidence can mean the difference between life and death. See Utah Code Ann. § 76-3-207(5)(b) (2003) (“The death penalty shall only be imposed if, after considering the totality of the aggravating and mitigating circumstances, the jury is persuaded beyond a reasonable doubt that total aggravation outweighs total mitigation....”).

¶ 19 Furthermore, the defendants in Wiggins and Armstrong had serious mental impairments. See Wiggins, 539 U.S. at -, 123 S.Ct. at 2536 (noting that defendant had an I.Q. of 79); Armstrong, 833 F.2d at 1434 (stating that defendant was likely mentally retarded and organically brain damaged). There is no evidence that Wright was in any way mentally impaired. Additionally, while Wright certainly had a difficult childhood and may have been sexually abused, he did not suffer the kind of physical and sexual abuse suffered by the defendant in Wiggins. See Wiggins, 539 U.S. at -, 123 S.Ct. at 2533 (noting that the defendant had been repeatedly raped by individuals from various foster homes and had suffered severe physical abuse by his biological mother and two of his foster mothers).

¶ 20 In setting forth the prejudice prong in Strickland, the Supreme Court held that “[t]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision[, and i]t should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency.” Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Thus, our inquiry turns on whether a reasonable and impartial decisionmaker would have found the mitigating evidence omitted at sentencing significant and substantial enough to alter the outcome of Wright’s sentence.

¶21 The evidence before Judge Brian at Wright’s sentencing hearing was as follows: (1) a clandestine lab was found in Wright’s bedroom, (2) Wright knew of the location of methamphetamine chemicals and waste products in other areas of the home, (3) all precursors necessary to manufacture methamphetamine were located in the home, (4) children were present in the home at the time the search warrant was executed, (5) Wright personally used the methamphetamine produced in the home, and (6) Wright was aware that the lab was operating in the home and the drug produced from it was being distributed. Additionally, Judge Brian was aware of Wright’s criminal history at sentencing. Specifically, Wright was referred to juvenile court nine times for offenses varying from burglary of a vehicle to possession of marijuana and drug paraphernalia. Wright was arrested and convicted three times prior to this offense for possession, of a controlled substance, domestic violence, and retail theft. Further, Judge Brian was aware of Wright’s difficult childhood including the death of his mother when he was five years old and drug use and abuse by his father.

¶22 The mitigating evidence provided at the remand hearing was as follows: (1) Wright blames himself for his mother’s death because he distracted her while she was driving which resulted in the accident that caused her death; (2) after his mother’s death, Wright sat on a couch and refused to speak to anyone for an entire year; (3) Wright lived in great fear of his alcoholic father during his childhood and was often left home alone with no food in the house; (4) Wright had been sexually abused as a child, contrary to the presentenee report; and (5) Wright had considerable support from family and friends.

¶ 23 While the detailed mitigating evidence regarding Wright’s traumatic childhood is relevant and should have been presented to the judge at sentencing, we are unpersuaded that this evidence would have changed the sentencing decision of a reasonable, conscientious judge. Furthermore, because there was no evidence produced at the remand hearing to demonstrate Wright’s alleged “minor role” in the operation of the clandestine lab, an impartial decisionmaker could have reasonably concluded that Wright was heavily involved in the operation of the clandestine lab found in his bedroom.

¶24 In short, a “reasonable], conscientious[ ], and impartial ],” Strickland, 466 U.S. at 695, 104 S.Ct. at 2068, decisionmaker could have concluded that Wright’s unlawful conduct' and criminal history warranted a sentence of five years to life notwithstanding Wright’s difficult childhood thirty years earlier or current family support. Because Wright has failed to satisfy the prejudice prong of the Strickland test, we affirm Wright’s conviction and sentence.

¶25 WE CONCUR: JAMES Z. DAVIS, Judge, and PAMELA T. GREENWOOD, Judge.

      . Rule 23B provides, in relevant part:
      A party to an appeal in a criminal case may move the court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court’s determination of a claim of ineffective assistance of counsel. The motion shall be available only upon a nonspecula-tive allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.
      Utah R.App. P. 23B(a).

      . We commend counsel for the State in calling our attention to this language from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in response to our inquiries about the effect of the testimony of the sentencing judge.


author: JACKSON, Judge:

text:
    2004 UT App 118
    David NIPPER, individually, and asserting claims assigned to him by Jim Ludwig and Ruth Ludwig, Plaintiff and Appellant, v. John H. DOUGLAS, Defendant and Appellee.
    No. 20021074-CA.
    Court of Appeals of Utah.
    April 15, 2004.

      Brian W. Steffensen, Salt Lake City, for Appellant.
    Preston S. Howell, West Valley City, for Appellee.
    ■ Before BENCH, Associate P.J., GREENWOOD, and JACKSON, JJ.
   OPINION

JACKSON, Judge:

¶ 1 David Nipper (Nipper) appeals an order from the district court granting summary judgment to John H. Douglas (Douglas). We affirm.

BACKGROUND

¶2 In 1998, Nipper made arrangements with “Remember When Classic and Performance Cars” (Remember When), a consignment sales car lot, for the consignment of a 1957 Chevrolet that he owned. Douglas was at the time the general partner of Remember When. After Remember When sold the ear to Jim and Ruth Ludwig (the Ludwigs), Remember When’s payment to Nipper failed to clear the bank. Accordingly, Nipper filed suit in April 1999 against Douglas, Remember When, and others. Assigned to Judge J. Dennis Frederick, Nipper’s complaint (the Frederick action) listed five causes of action: (1) Breach of Contract; (2) Theft; (3) Civil Conspiracy; (4) Declaratory Relief; and (5) Breach of Covenant of Good Faith and Fair Dealing. In subsequent motions filed with the court, Nipper specifically referenced a theory of relief against Douglas based upon the alter ego doctrine. On 25 June 2001, Judge Frederick entered an order of summary judgment granting Nipper relief against Remember When. On 17 December 2001, however, Judge Frederick granted summary judgment to Douglas on the issue of whether Douglas could be held personally liable for Nipper’s loss. Nipper filed multiple motions asking Judge Frederick to reconsider the summary judgment grant in favor of Douglas. All of these motions were denied.

¶ 3 In September 1999, the Ludwigs filed suit against Nipper, seeking to obtain title to the 1957 Chevrolet at the heart of this dispute. In this suit, the Ludwigs also raised various claims against Douglas and Remember When. In the course of settling the litigation with the Ludwigs, Nipper allegedly acquired the Ludwigs’ claims against Douglas and Remember When.

¶ 4 In May 2001, Nipper filed another suit related to the dispute over the 1957 Chevrolet. This case was assigned to Judge Frank G. Noel (the Noel action). As in the Frederick action, Nipper named Douglas, Remember When, and various other parties as defendants. The statement of the facts in the Noel action closely paralleled'that which had been included in the complaint filed in the Frederick action, with word-for-word duplication throughout large portions of the complaint. As in the Frederick action, Nipper again asked for relief based upon Breach of Contract, Theft (with virtually identical wording to the Theft cause of action filed in the Frederick action), and Civil Conspiracy. By Nipper’s own admissions, there were only two substantive differences between the complaint filed in the Frederick action and the complaint in the Noel action. First, in the Noel action, Nipper added causes of action based on the RICO statute and on the alter ego doctrine; second, in the Noel action, Nipper argued that he was not only asserting claims on his own behalf, but also on behalf of the Ludwigs.

¶ 5 On 29 March 2002, Judge Noel granted Douglas’s motion for summary judgment on the ground that Nipper’s complaint was barred by the doctrine of res judicata. On 9 April 2002, Judge Noel also granted Douglas’s motions for attorney fees and sanctions under rule 11 of the Utah Rules of Civil Procedure.

¶ 6 Subsequent to the grant of summary judgment, Nipper allegedly learned that Douglas and various other co-defendants had pleaded guilty to criminal charges arising out of their management of Remember When. Nipper motioned the court to (i) withdraw its grant of summary judgment for Douglas and (ii) grant his motion for summary judgment based on the res judicata effects supposedly created by the criminal convictions. As sole evidentiary support for this motion, Nipper attached an internet printout from a local newspaper describing the convictions. Judge Noel denied the motion to reconsider. Nipper now appeals.

ISSUES FOR REVIEW

¶ 7 The precise scope of Nipper’s appeal is somewhat unclear. In his Statement of the Issues for Review, Nipper lists six different issues as the subject of his appeal. In his Table of Contents, however, Nipper directs our attention to eight different issues. A comparison of the two different listings of issues sheds little light on this problem. Though one of the items listed in his Table of Contents, “Elements of Res Judicata,” is clearly meant to act as legal background, that still leaves seven argumentative captions in a Table of Contents that is supposed to illuminate the six legal arguments listed in the Statement of the Issues for Review. Further, it appears from our review that several of these arguments are not independent arguments in and of themselves, but are instead more accurately described as sub-arguments modifying a larger point.

¶ 8 As best as we can determine, Nipper has three main arguments on appeal. First, Nipper alleges that Judge Noel erred in. determining that the grant of summary judgment in the Frederick action acted as res judicata on his claims before Judge Noel. Second, Nipper alleges that Judge Noel erred in denying, his request .to reconsider Judge Noel’s own grant of summary judgment based on the internet newspaper printout showing Douglas’s guilty plea in a separate criminal proceeding. Third, Nipper argues that Judge Noel erred in granting rule 11 sanctions below.

ANALYSIS

I. The Res Judicata Effect of the Frederick Action

¶ 9 Nipper’s principal argument with respect to Judge Noel’s res judicata ruling is that the Frederick dismissal had no preclu-sive effect on the Noel action because (i) the Noel action was based on two additional grounds for relief, and (ii) in addition to his own rights, Nipper was allegedly asserting the rights of the Ludwigs in the Noel action. This attempted circumvention of the principle of res judicata, however, is legally unsustainable.

¶ 10 Contrary to Nipper’s repeated assertions, his addition of two new causes of action to a lawsuit that is entirely predicated on the same set of operative facts and the same alleged injury does not void the otherwise preclusive effects of the prior judgment. “Not only does claim preclusion prevent relit-igation of a claim, it also prevents the litigation of claims that could and should have been litigated in the prior action, but were not.” Office of Recovery Servs. v. V.G.P., 845 P.2d 944, 946 (Utah Ct.App.1992). If an issue in a subsequent suit “ ‘between the same parties or their privies is shown to have been determined in a former one, the question is res judicata ..., although the actions are based on different grounds, or tried on different theories, or are instituted for different purposes and seek different relief.’ ” Berry v. Berry, 738 P.2d 246, 248 (Utah Ct.App.1987) (citation omitted).

[Hjaving been defeated on the merits in one action, a plaintiff sometimes attempts another action seeking the same or approximately the same relief but adducing a different substantive law premise or ground. This does not constitute the presentation of a new claim when the new premise or ground is related to the same transaction or series of transactions, and accordingly the second action should be held barred.

Id. (citation omitted); see also Sevy v. Security Title Co. of S. Utah, 902 P.2d 629, 633 (Utah 1995) (“It is well settled that issue preclusion prevents relitigation of the same issue even if the claims for relief in the two actions are different.”).

¶ 11 Here, “the issues are the same, the facts are the same, and the evidence is the same as in the previous litigation.” Berry, 738 P.2d at 248. The mere addition of a RICO claim and an alter ego claim to an otherwise straightforward regurgitation of the prior complaint simply does not negate the preclusive effects of the prior dismissal.

¶ 12 Nipper also argues that res judi-cata should not apply because Judge Frederick’s order was not final. In his brief, however, Nipper has failed to either (i) include any citation or legal analysis specifically discussing the contours of the finality requirement, or (ii) specifically explain why the order of summary judgment entered by Judge Frederick was not final. “As we have repeatedly noted, we are not a depository in which [a party] may dump the burden of argument and research.” Smith v. Four Comers Mental Health Ctr., Inc., 2003 UT 23,¶ 46, 70 P.3d 904 (quotations and citations omitted) (alteration in original). Accordingly, we decline to address this argument.

¶ 13 A final note on Nipper’s res judicata argument is in order here. In spite of Nipper’s inability to point to any legal authority that would support his contention that res judicata does not bar his attempted relitigation of the Frederick action before Judge Noel, Nipper has asserted in his reply brief that we should grant him relief based on his ill-argued assertions that “justice” should be done. What Nipper obviously fails to recognize, however, is that our judicial system is designed to provide justice for plaintiffs and defendants alike. In our adversarial civil system, procedural safeguards must exist in order to ensure that a plaintiffs zeal for recompense is not allowed to dwarf a defendant’s right to fairly present a case for non-liability. The doctrine of res judicata is one of the chief mechanisms by which this equilibrium is maintained, thereby “relieving parties of the cost and vexation of multiple lawsuits” and “preventing inconsistent decisions.” V.G.P., 845 P.2d at 946. Thus, “[t]he ‘doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, “of public policy and of private peace,” which should be cordially regarded and enforced by the courts.’ ” Id. (quoting Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 508, 61 L.Ed. 1148 (1917)).

¶ 14 In the Frederick action, Nipper had the opportunity to fully and fairly litigate his claims before an impartial tribunal. After having faded to obtain relief against Douglas in that action, Nipper can file a direct appeal of any adverse rulings as a continuation of his judicial pursuit of justice. Under our rules, however, Nipper was not entitled to essentially refile the same complaint before a different judge in the hopes of achieving a different result. In our view, allowing Nipper to pursue such a course of action would itself be manifestly unjust.

II. The Res Judicata Effect of Douglas’s Criminal Conviction

¶ 15 Nipper next argues that Judge Noel erred in refusing to grant his own motion for summary judgment. This motion was based on his argument that Douglas’s alleged criminal conviction on charges that were allegedly related to the civil claims brought by Nipper should act as res judicata in the civil action. As proof of the criminal conviction, Nipper attached to his motion below an internet printout of a newspaper article.

¶ 16 Once again, Nipper has failed to properly brief the issue. Among the briefing failures with respect to this issue are (i) a failure to provide any legal citation or legal analysis as to the legal relationship, if any, between the.crimes for which Douglas was allegedly convicted and the civil causes of action at the heart of this dispute and (ii) a failure to provide any legal citation or legal analysis discussing the preclusive effects of criminal convictions on otherwise related civil actions. Given Nipper’s complete failure to provide us with any meaningful support for his 'argument, we decline to address its merits. See Smith, 2003 UT 23 at ¶ 46, 70 P.3d 904.

III. Rule 11 Sanctions

¶ 17 Nipper also argues that the trial court’s grant of attorney fees and sanctions to Douglas should be reversed. Nipper has not provided any citation to the record, however, that would show where the grant of attorney fees was actually entered. Indeed, Nipper did not even mention this grant of attorney fees in his Statement of the Facts or Statement of the Case. Further, Nipper has not provided us with any authority setting forth the applicable law regarding the trial court’s ability to award attorney fees or sanctions, nor has he provided us with any authority setting forth the standards by which we can overturn such an award. As such, we decline to address the merits of Nipper’s argument. See Utah R.App. P. 24(j).

IV. Appellate Sanctions

¶ 18 Finally, Douglas argues that an award of attorney fees associated with this appeal is appropriate. We agree.

¶ 19 Utah Rule of Appellate Procedure 24(j) states that briefs “must be concise, presented with accuracy, logically arranged with proper headings and free from burdensome, irrelevant, immaterial or scandalous matters. Briefs which are not in compliance may be disregarded or stricken ... sua sponte by the court, and the court may assess attorney fees against the offending lawyer.” As discussed above, Nipper’s brief was extraordinarily deficient in terms of its briefing quality. In addition to being bereft of any organizational coherency or structure, the arguments were for'the most part unsupported by any specific legal citation or analysis. Indeed, there are only three citations of any note in the argument section of Nipper’s brief. In the first, Nipper has merely quoted from a Utah ease that sets forth the general res judicata analysis. This quotation, however, is not clarified with any reference to any cases that discuss the particular portions of the res judicata analysis that were actually the subject of Nipper’s appeal. See Smith, 2003 UT 23 at ¶ 46, 70 P.3d 904 (“A brief is inadequate when it merely contains bald citations to authority without development of that authority and reasoned analysis based on that authority.” (Quotations, citations, and alterations omitted.)). In the second, Nipper has included an extended, three-page long, single-spaced quotation from another Utah case that also discusses the res judicata analysis. Though the inclusion of a three-page long quotation may not be per se “burdensome” under rule 24(j), a three-page long quotation that is not supported by a detailed follow-up analysis is in fact “burdensome.” Use of such lengthy, unanalyzed quotations is also at odds with rule' 24(j)’s conciseness mandate.

¶ 20 Rule 24(j) allows us to direct that the award of attorney fees be paid by the party’s attorney. Here, our award of attorney fees is predicated on the failure of Nipper’s counsel to adequately brief the issues raised on appeal. Insofar as the technical and legal adequacy of a brief is a matter for which a party’s attorney is uniquely responsible, we think it plain that the fault for the filing of this improperly briefed appeal must lie with Nipper’s attorney. Accordingly, we grant Douglas’s request for an award of attorney fees incurred in this appeal, and direct that these fees be paid to Douglas by Nipper’s attorney.

CONCLUSION

¶21 We affirm the decision of the trial court that Nipper’s claims in the Noel action were barred by the doctrine of res judicata. Due to deficient briefing, we decline to review Nipper’s claims relating to his own motion for summary judgment and the imposition of sanctions below. We also conclude that Douglas is entitled to attorney fees incurred in this .appeal. Accordingly, we remand this case to th.e trial court for the sole purpose of determining the amount of attorney fees incurred in this appeal, and direct that those attorney fees be paid by Nipper’s attorney.

¶ 22 WE CONCUR: RUSSELL W. . BENCH, Associate Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . Indeed, the degree to which Nipper’s Table of Contents fulfills its own purpose is itself an open question. Nipper’s Table of Contents contains no numbering, lettering, or structural designations of any kind. In the absence of any organizational markings, it is entirely unclear as to which headings are meant to act as main argu- ' ments acting as independent grounds for relief, and which are instead meant to serve as subsidiary arguments supporting a broader point.

      . In oral arguments before Judge Noel on Nipper’s Motion for Reconsideration, Nipper's counsel stated that it is his "practice” to file similar actions in multiple courts and to then attempt to consolidate them into one action. In explaining why this was his usual course of action, Nipper’s counsel stated that this "practice" was a defensive measure designed to avoid the denial of a motion to amend. Thus, the following colloquy occurred:
      THE COURT: [C]ouldn't [the RICO claim] have been raised in Frederick’s case?
      MR. STEFFENSEN: Sure, but it wasn’t, and that doesn’t mean it’s precluded, your -Honor. We either make a motion to amend or file a new case. You can do either one.... [I]t’s frustrating because well make motions to amend and they'll get denied and we have to file new lawsuits.... And so our practice has been if we're going to file the lawsuit, toll the statute and then if there needs to be a motion to consolidate, let there be a motion to consolidate.
      To clear up counsel's apparent confusion, we note here that such a practice may indeed have some validity in situations where a plaintiff has multiple causes of action against the same defendant that are factually and legally unrelated. However, as discussed above, where the different causes of action are based on the same set of operative facts, it is clear that principles of preclusion demand that the claims be litigated in a single setting. See Berry v. Berry, 738 P.2d 246, 248 (Utah Ct.App.1987). Here, Nipper's claim in the Noel action was so inextricably tied to Nipper’s claim in the Frederick action that it relied on word-for-word recitations of large portions of the statement of facts and causes of action that had been pleaded in the prior case. As such, claim preclusion clearly applied.

      . • Because of dur determination that res judicata barred the Noel action, we need not reach Nipper’s arguments regarding the preclusive effects of collateral estoppel.

      . We have considered the other issues raised by Nipper in his brief and conclude that they are without merit. Accordingly, we decline to address them. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (holding that an appellate court "need not analyze and "address in writing each and every argument”).