author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 379
    Dennis V. SPENCER and Linda S. Spencer, Plaintiffs and Appellants, v. PLEASANT VIEW CITY, a Utah municipality; Cherrywood Manor, Inc., a Utah corporation; Cherrywood Manor Home Owners Association, Inc., a Utah corporation; and John and Jane Does I-XX, individual defendants in their private capacities, Defendants and Appellees.
    No. 20010927-CA.
    Court of Appeals of Utah.
    Nov. 6, 2003.

      Matthew Hilton, Dexter & Dexter, Orem, for Appellants.
    Jody K. Burnett, Williams & Hunt and Lowell Smith, Smith & Glauser, Salt Lake City, for Appellees.
    Before BILLINGS, A.P.J., JACKSON, P.J., and THORNE, J.
   OPINION (For Official Publication)

BILLINGS, Associate Presiding Judge:

¶ 1 Plaintiffs Dennis and Linda Spencer (the Spencers) appeal the trial court’s denial of their motion for partial summary judgment and grant of summary judgment in favor of Defendant, the City of Pleasant View (the City). We affirm.

BACKGROUND

¶ 2 The Spencers own two parcels of real property located in the City identified as the East parcel and the West parcel. The Spencers and the City have had a number of disputes over the City’s requirements for the Spencers to develop their property as building lots. The Spencers allege the City has violated their civil lights by revoking previously granted variances, refusing to issue building permits, and improperly limiting their use of a private right-of-way.

¶ 3 The Spencers obtained the subject property in 1971. The Spencers received a non-exclusive right-of-way for ingress and egress, utility installation, and maintenance south of their property. The Spencers conveyed the eastern half of the West parcel to John and Lola Parker (the Parkers) in 1983. On July 11, 1983, the Board of Adjustment (the Board) granted the Parkers a variance to build on the West parcel with the following conditions: (1) the building lot be 20,000 square feet without consideration of the right-of-way; (2) the buildings be set back at least thirty feet from the edge of the right-of-way; (3) the Parkers provide an engineer’s design to the City showing cuts for utilities, grades for roads, and the design of the right-of-way for future development in the area; (4) the City secure an opinion from the City Attorney as to whether the City can control any future requests for variances on undedicated roads if they grant this variance; and (5) should any future development be made, the Parkers must participate in hard surfacing the road, curb and gutter, and sidewalks.

¶ 4 As required, the City Attorney advised the Board that dividing the original property into parcels without compliance with the City’s subdivision ordinance made the sale of lots unlawful and that the Board could not approve the Parkers’ request without requiring compliance with the subdivision ordinance. Thus, because the variance condition requiring a favorable opinion by the City Attorney was not satisfied, the City refused to issue the Parkers a building permit. However, months later, counsel for the City Planning Commission issued an opinion indicating that the sale of property by the Spenc-ers to the Parkers did not constitute a subdivision and thus would not be subject to the City’s subdivision ordinance. Based upon this conclusion by its counsel, the City Planning Commission voted on March 20, 1984 to allow the Parkers to obtain a building permit. However, the Parkers waited almost ten years before applying for a building permit. On February 8, 1993, the City refused to issue the Parkers a building permit on the grounds that the surrounding property had changed, that ten years is not a reasonable time to wait to develop after receiving a variance, and that none of the required conditions was met.

¶ 5 On March 31, 1986, the Board granted the Spencers a variance to build on the East parcel subject to similar requirements as were placed on the West parcel. However, the Spencers did not take action to obtain a building permit until 1995, at which time the Spencers applied to the Board for a renewal of the 1986 variance. On May 19, 1995, counsel for the City returned the Spencers’ application along with a letter explaining that even though the City’s zoning ordinance permitted special exceptions, the City had not adopted standards upon which a special exception may be granted. Thus, counsel concluded, the Board is without authority to grant special exceptions. Further, the letter stated the action taken over eight years ago by the Board has no bearing on what the current Board may or should do.

¶ 6 At a hearing on July 16, 1998, the Board denied the Spencers request for “[a]p-proval for a lot or lots, not having frontage on a street as required by the zoning title for the zone in which the subdivision is located, but upon a right-of-way.” The Board found (1) the Spencers failed to present evidence to indicate that the proposed subdivision was in the best interests of the public welfare and development of the neighborhood as required by the City’s subdivision ordinance; and (2) there were no physical restrictions that would obstruct the building of a dedicated public street on the Spencers’ property in conformance with the subdivision ordinance.

¶ 7 On August 7, 1998, the Spencers initiated this action claiming, inter alia, several state and federal constitutional violations and slander of title. In May 1999, the Spencers sought partial summary judgment for their constitutional claims involving the City’s failure to issue building permits for both parcels of land after revoking the previous variances for each parcel. In an attempt to resolve the dispute, the City offered the Spencers two building permits, and in December 1999, filed a motion for summary judgment on all remaining claims. In October 2000, the trial court granted the City’s motion for summary judgment and denied the Spencers’ motion for partial summary judgment. The Spenc-ers filed a motion to revise summary judgment, and in the accompanying memorandum argued, inter alia, that they were entitled to attorney fees under 42 U.S.C. § 1988 (2002). In September 2001, the trial court upheld its previous summary judgment ruling and denied the Spencers’ request for attorney fees. The Spencers appeal.

ISSUE AND STANDARD OF REVIEW

¶ 8 The Spencers argue the trial court erred in dismissing various state and federal constitutional claims against the City, and in dismissing their claim for attorney fees. “Summary judgment is proper solely in cases in which no genuine issues of material fact exist and the movant merits judgment as a matter of law. We accord no deference to the trial court’s legal conclusions, reviewing them for correctness.” Smith Inv. Co. v. Sandy City, 958 P.2d 245, 251 (Utah Ct.App.1998).

ANALYSIS

I. Attorney Fees

¶ 9 The Spencers argue they are entitled to attorney fees as “prevailing parties” on their federal constitutional claims for equitable relief. Under federal law, “[i]n any action or proceeding to enforce a provision of seetion[] ... 1983 of this title, [under which the Spencers brought their federal claims against the city,] ... the [trial] court, in its discretion, may allow the ‘prevailing party ’ & reasonable attorneyü fee.” 42 U.S.C. § 1988 (2002) (emphasis added). A party can “prevail” for § 1988 purposes only where there is a “judicially sanctioned change in the legal relationship of the parties,” as with “enforceable judgments on the merits and court-ordered consent decrees.” Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604-05, 121 S.Ct. 1835, 1840, 149 L.Ed.2d 855 (2001).

¶ 10 Before the trial court, the Spencers claimed the City violated the Constitution by refusing to issue certain building permits. In a written order, the trial court declared those claims “moot” because the City offered to issue the permits. The Spencers classify this “judicial acknowledgment” of the City’s offer as a “court-ordered change in the legal relationship” between the Spencers and the City entitling the Spencers to attorney fees.

¶ 11 We disagree. “A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Buckhannon, 532 U.S. at 605, 121 S.Ct. at 1840. In Buckhannon, the plaintiff alleged that West Virginia state law infringed upon two federal statutes. See id. at 601, 121 S.Ct. at 1838. After the lawsuit began, the West Virginia Legislature enacted two bills removing the state law’s questionable language. See id. In response to the state’s motion to dismiss, the trial court found that the subsequent legislation mooted the plaintiffs federal claims. See id. The Supreme Court found these facts insufficient to grant the plaintiff “prevailing party” status and refused to allow attorney fees. See id. at 605, 121 S.Ct. at 1840; see also New York State Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine Comm’n, 272 F.3d 154, 157-59 (2d Cir.2001) (concluding, in a post-Buckhannon decision, that where the trial court noted in a memorandum and order that a reciprocity agreement “mooted the [relevant] litigation,” the lawsuit “did not result in a judicially sanctioned change in the legal relationship of the parties,” so as to require a reversal of a § 1988 award of attorney fees).

¶ 12 In their reply brief, the Spencers point to a post-Buckhannon Eleventh Circuit opinion concluding that “even absent the entry of a formal consent decree, [where] the [trial] court ... incorporates the terms of a settlement into its final order of dismissal,” it confers “prevailing party” status on the plaintiff. American Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir.2002). However, this is “because the plaintiff thereafter may return to court to have the settlement enforced.” Id. In American Disability, the trial court “not only specifically approved, adopted and ratified the parties’ settlement, but also expressly retained jurisdiction to enforce its terms.” Id. at 1320-21 (quotations omitted). Here, however, the trial court did not approve, adopt, or ratify the City’s offer in any official manner, nor did it retain jurisdiction.

¶ 13 The City in this case voluntarily offered to issue the permits to the Spencers after commencement of the lawsuit, and the trial court’s acknowledgment in its order that the City’s actions mooted the Spencers’ equitable claims is insufficient to warrant attorney fees.

¶ 14 In sum, the Spencers are not “prevailing parties” under 42 U.S.C. § 1988 (2002). Therefore, we uphold the trial court’s denial of attorney fees.

II. Federal Due Process Claims

¶ 15 The Spencers next argue their federal substantive and procedural due process claims for damages against the City should have survived summary judgment. We disagree since we conclude the Spencers failed to demonstrate a protected property interest under 42 U.S.C. § 1983 (1999).

¶ 16 To state a valid substantive or procedural due process claim under § 1983, the Spencers ‘“must first allege sufficient facts to show a property ... interest warranting due process protection.’ ” Patterson v. American Fork City, 2003 UT 7,¶ 23, 67 P.3d 466 (quoting Crider v. Board of County Comm’rs, 246 F.3d 1285, 1289 (10th Cir.2001)). To have “a valid property interest in a state-created right, a plaintiff ‘must have more than a unilateral expectation of it;’ instead, the plaintiff must have a ‘legitimate claim of entitlement to it.’ ” Id. (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)).

¶ 17 “Many courts have held that adverse municipal land-use decisions are not actionable under § 1983 because a developer does not typically have a claim of entitlement to a favorable decision.” Id. at ¶24. For example, in Patterson, the Utah Supreme Court noted

a municipality’s rejection of a developer’s proposal does not always amount to a violation of section 1983 because every planning dispute “necessarily involves some claim that the [municipality] exceeded, abused or ‘distorted’ its legal authority in some manner, often for some allegedly perverse (from the developer’s point of view) reason. It is not enough simply to give these state law claims constitutional labels such as ‘due process’ or ‘equal protection’ in order to raise a substantial federal question under section 1983.”

Id. at ¶ 25 (quoting Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982)). Additionally, “absent invidious discrimination, such as proof of racial animus, the ‘conventional planning dispute ... is a matter primarily of concern to the state and does not implicate the Constitution.’” Id. (quoting Creative Environments, Inc., 680 F.2d at 833).

¶ 18 The Spencers have not alleged invidious discrimination by the City. Rather, the Spencers argue their original variances warrant federal protection in that “[v]ari-anees run with the land,” Utah Code Ann. § 10-9-707(4) (1998), and are not subject to revocation. This argument is merely a “‘conventional planning dispute.’” Patterson, 2003 UT 7 at ¶25 (quoting Creative Environments, Inc., 680 F.2d at 833). Further, the Spencers have not identified a protected property interest to which they are entitled. While the Spencers and the Par-kers obtained variances to build on their properties, neither sought to build until nearly ten years after the variances were granted. We have “uncovered no authority that suggests a property owner has a vested property right in a contemplated development or subdivision.” Marshall v. Board of County Comm’rs, 912 F.Supp. 1456, 1464 (D.Wyo.1996). Moreover, the Spencers’ argument, taken to its logical conclusion, would allow property owners who fail to act for many years on a granted variance to frustrate a city’s ability to update its land use regulations.

¶ 19 The Spencers’ case “involves disputes about specific local development issues, not about the deprivation of constitutional rights.” Patterson, 2003 UT 7 at ¶ 28. “Whatever unfairness [the Spencers] may have experienced, nothing in the facts presented sounds constitutional alarm bells.” Id. at ¶ 28. Thus, we conclude the Spencers failed to establish a property interest protected under 42 U.S.C. § 1983, and therefore the trial court properly granted summary judgment in favor of the City.

III. Federal Takings' Claim Inadequately Briefed

¶ 20 The Spencers’ federal takings claim is inadequately briefed, and we refuse to consider it. “It is well established that a reviewing court will not address arguments that are not adequately briefed.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998).

In deciding whether an argument has been adequately briefed, we look to ... rule 24(a)(9) of the Utah Rules of Appellate Procedure!], which] states that the argument in the appellant’s brief “shall contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities, statutes and parts of the record relied on.” Implicitly, rule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority.... [T]his court is not a depository in which the appealing party may dump the burden of argument and research.

Id. at 305 (citations omitted) (emphasis added).

¶21 Incorrectly labeling their claim as “substantive due process,” the Spencers inadequately assert a federal “taking” without just compensation. In cursory fashion, the Spencers argue that a platting error by the City, regarding a right-of-way owned by the Spencers limiting use of that right-of-way, involved a private rather than public use. Aside from a one sentence quotation to a 1937 takings case, the Spencers cite no case law describing or supporting their claim. There is no reasoned analysis or factual development supporting any legal claim for damages, thus “dump[ing] the burden of argument and research” on this court. Id. (quotations and citation omitted). Similarly, the Spencers claim the City’s “actions were not related to [its] rationale proffered for conduct.” However, the Spencers make no mention of damages or constitutional remedies. The Spencers reference several instances of the City’s conduct regarding the Spencers’ development attempts without any meaningful discussion of these facts or reasoned analysis as to why the City’s conduct amounts to a constitutional taking. Citing one regulatory takings case, the Spencers superficially claim the facts are similar to this case, with no further analysis or mention of the elements of a regulatory takings. Therefore, the federal takings claim fails.

IV. Slander of Title

¶ 22 The Spencers argue that their slander of title claim against the City should have survived summary judgment. The trial court dismissed this claim because, inter alia, the Spencers failed to establish a “factual or legal basis” for their assertions. The Spenc-ers do not argue a cognizable claim on appeal, and we therefore affirm the trial court’s ruling.

If 23 “To prove slander of title, a claimant must [show] that (1) there was a publication of a slanderous statement disparaging [the] claimant’s title, (2) the statement was false, (3) the statement was made with malice, and (4) the statement caused actual or special damages.” First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253, 1256-57 (Utah 1989). In their brief, the Spencers refer to “collective city statements” that “denigrated the validity of Spencers’ real property,” but do not provide any details about those statements or how they satisfy the first element. For the second element, the Spencers assert in conclusory fashion that the City’s statements “were false.” In asserting malice, the Spencers cite the standard but do not apply it to the facts, arguing only that, “taken in context,” the statements were malicious. The Spencers also inadequately argue special damages. Thus, the Spencers’ slander of title claim fails.

CONCLUSION

¶ 24 We conclude the Spencers are not entitled to “prevailing party” attorney fees. Further, the Spencers fail to articulate any legitimate constitutional claims against the City. The Spencers’ slander of title claim also fails. Therefore, we affirm.

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

      . The Spencers later reacquired the entire West parcel.

      . The Spencers’ nonequitable federal claims are irrelevant to this argument, since the trial court dismissed them on primarily substantive grounds and the Spencers request their reinstatement on appeal. Thus, the Spencers could not have yet "prevailed” on those claims.
      Further, although "attorney fees may also be claimed by a party under the theory that the party succeeded on a non-[federal] claim pendent to a substantial constitutional claim and which arises from a "common nucleus of operative fact,”' ” the Spencers "ma[ke] no such claim here.” Call v. City of West Jordan, 788 P.2d 1049, 1053 n. 4 (Utah Ct.App.1990) (citations omitted). Thus, for instance, the Spencers' reference to $1,260.00 offered by the City is irrelevant, since this offer was in response to a state law claim.

      . The Buckhannon Court specifically held that the " 'catalyst theory,’ which posits that a plaintiff is a 'prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct,” is not a proper basis for attorney fees. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 601, 610, 121 S.Ct. 1835, 1838, 1843, 149 L.Ed.2d 855 (2001). Although the Court did not directly address whether the trial court’s decision mooting the plaintiff's claim was in itself a sufficient "judicial imprimatur," id. at 605, 121 S.Ct. at 1840, the Court refused attorney fees under those facts and, in addressing the policy implications of its decision, noted that "it is not [even] clear how often courts will find a case mooted[, as here].” Id. at 609, 121 S.Ct. at 1842.

      . Contrary to their position regarding attorney fees, the Spencers argue their equitable relief claims under federal law are not moot. First, the Spencers insist the City has not met its "heavy burden" to show its allegedly wrongful conduct cannot reasonably be expected to recur. We find the Spencers did not adequately brief this issue. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) ("It is well established that a reviewing court will not address arguments that are not adequately briefed.”). Second, in their opening brief, the Spencers cite to the record where, at an earlier date, they claimed that they had not yet received the permits. In their reply brief, the Spencers coyly state that "[n]either Spencers nor the [C]ity have claimed on appeal that the building permits have been issued.” Thus, since the Spencers do not actually argue that the permits were not issued as of the date of the Spencers' opening and reply briefs, we do not consider any argument that the Spencers’ claims are therefore not moot.

      . It is unclear from the Spencers’ brief whether they intended to appeal the denial of their equal protection claim. Thus, we refuse to consider it. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) ("It is well established that a reviewing court will not address arguments that are not adequately briefed.”).

      . The Spencers presumably brought all of their federal constitutional claims against the City pursuant to 42 U.S.C. § 1983 (1999). Although the Spencers’ complaint makes scant reference to § 1983, both parties and the trial court have treated these claims as § 1983 claims, and the Spencers do not assert any authority other than § 1983 for bringing such claims.

      . We limit our holding to the specific facts of this case. We cannot say there will never be a case in which an adverse municipal land use decision against a developer rises to the level of a constitutional violation. However, the facts of this case do not warrant constitutional protection.

      . The Spencers' cursory and conclusory arguments that the City violated Article 1, Section 7; Article 1, Section 22; and Article XI, Section 5 of the Utah Constitution also fail for inadequate briefing.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2003 UT App 380
    Noel COVEY, Plaintiff and Appellee, v. Almon COVEY, Defendant and Appellant.
    No. 20020197-CA.
    Court of Appeals of Utah.
    Nov. 6, 2003.

      Dena C. Sarandos, Larry R. Keller, and Christian J. Cannon, Cohne Rappaport & Segal, Salt Lake City, for Appellant.
    James E. Magleby and Paxton R. Guymon, Miller Magleby & Guymon PC, Salt Lake City, for Appellee.
    Before Judges JACKSON, BENCH, and DAVIS.
   OPINION

DAVIS, Judge:

¶ 1 Almon Covey (Almon) appeals from two trial court judgments entered on August 14, 2001, and February 8, 2002. We affirm.

BACKGROUND

¶2 Almon is the older brother of Noel Covey (Noel). Sometime during 1991, Almon asked Noel to loan him 7219 shares of Sears, Roebuck and Co. stock (the Sears stock) that she owned. Almon wished to use the Sears stock to pledge as collateral on a margin account that he had with a securities brokerage firm, Covey & Co. Almon was a stockbroker with Covey & Co. and also its principal owner.

¶ 3 To document the loan of the Sears stock, Almon and Noel agreed to the terms of a document titled “Loan Accommodation Agreement” (the Agreement). Under the terms of the Agreement, the parties agreed that Noel would loan the Sears stock to Almon, provided that: (1) the Sears stock was “returned to [Noel] timely”; (2) Almon provide certain consideration to Noel; and (3) appropriate remedies were available to Noel in the event that Almon failed to “return the [Sears stock] timely.” The Agreement authorized Almon to pledge the Sears stock as collateral on his margin account at Covey & Co., “provided that [Almon] entered] into an appropriate pledge agreement with” Covey & Co. The Agreement required that the terms of “an appropriate pledge agreement” must provide that “ownership of the [Sears stock] shall not be transferred unless and until [Covey & Co.] executes on the collateral to cover the required margin in accordance with the terms of the pledge agreement and the requirements under [Al-monjs margin account.”

¶4 In defining the term of the loan, the Agreement stated that Almon was to return the Sears stock to Noel “within thirty days of the date of [the] Agreement.” The Agreement provided that, in the event that Almon did not return the Sears stock to Noel within thirty days, Almon “shall be required to pay to [Noel] the sum of $1,000 per day, for each day after such thirty[-]day period until the [Sears stock is] returned to [Noel].”

¶ 5 The only item specifically listed as “consideration” in the Agreement was Al-mon’s agreement to bear sole responsibility for all damage or necessary repairs to a 1981 Jeep CJ-5, which Almon apparently loaned to Noel as part of the Agreement. However, the Agreement also stated that, at the same time the Agreement was executed, Almon delivered to Noel a “Warranty Deed and Notice of Interest in Real Property, ... duly executed by [Almon] in favor of [Noel],” concerning certain real property owned by Al-mon on Walker Lane in Holladay, Utah (the Walker Lane property). The Agreement provided that, following the execution of the Agreement, Noel was “authorized to record the Notice of Interest with the Salt Lake County Recorder’s office,” in order to provide notice that Noel possessed an interest in the Walker Lane property “pending [Al-mon’s] return of the [Sears stock].” The Agreement further provided that, in the event that Almon did not return the Sears stock to Noel and pay any applicable “$1,000 per day” late fees “within sixty (60) days of [the] Agreement,” Noel “shall be entitled to take title to the real property in lieu thereof and record the Warranty Deed.”

¶ 6 The Agreement contained several miscellaneous provisions, but only two of them are relevant to this appeal. First, in reference to remedies, the agreement provided:

No failure or delay on the part of [Noel] in exercising any right, power, or remedy under [the] Agreement or any exhibits or other documents executed and delivered in connection herewith shall operate as a waiver thereof; or shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy under [the] Agreement, the exhibits thereto, or any other document executed and delivered in connection herewith. The remedies provided in such documents are cumulative and not exclusive of any remedies provided by law.

Second, the Agreement provided:

In the event any party institutes any action or suit to enforce [the] Agreement or to secure relief from any default hereunder or breach hereof, the breaching party or parties shall reimburse the non-breaching party or parties for all costs, including reasonable attorney[ ] fees, incurred in connection therewith and in enforcing or collecting any judgment rendered therein.

¶ 7 The parties executed the Agreement on September 19, 1991, and Noel delivered the Sears stock to Almon. Noel then recorded her Notice of Interest in the Walker Lane property on September 20, 1991. During the term of the Agreement, there was never a margin call on Almon’s margin account at Covey & Co., and Covey & Co. never executed on the Sears stock to satisfy the requirements of Almon’s margin account. However, at some point after the execution of the Agreement, the Sears stock was sold. There was conflicting evidence presented at trial about when and how the sale of the Sears stock occurred, but it was undisputed that the sale of the stock did not occur pursuant to an execution on the Sears stock by Covey & Co. to satisfy the requirements of Almon’s margin account at Covey & Co. Almon never returned the stock to Noel and, as a result, he was in breach of the Agreement. When Noel discovered that the Sears stock had been sold, she had the option of recording the Warranty Deed for the Walker Lane property; however, she chose not to do so.

¶ 8 Around the same time that Noel discovered the Sears stock had been sold, she also discovered a significant loss in an account she held at Covey & Co. This loss, which was unrelated to the Sears stock or the Agreement, was attributable to certain transactions that had occurred in her account. Noel was unaware that these transactions had taken place and did not authorize any of them. In her testimony at trial, Noel indicated that Almon was the only stockbroker at Covey & Co. that Noel ever authorized to make transactions in her account.

¶ 9 On October 28, 1996, Almon sold the Walker Lane property (the Walker Lane sale). At some point prior to this date, Noel agreed to remove her Notice of Interest from the property so that the sale could proceed. The parties agreed in advance of the Walker Lane sale that Noel would receive the net proceeds from the sale. Although Noel obtained possession of the net proceeds of the sale, there was conflicting evidence presented at trial regarding the effect of her possession of the proceeds. Almon’s testimony at trial was that he understood Noel’s receipt of the proceeds to be her elected remedy under the Agreement. Almon also testified that he instructed Noel to repurchase the Sears stock herself with the proceeds. Noel’s testimony at trial was that she held the proceeds only as a form of collateral to ensure that Almon would return the Sears stock to her and that she believed she would incur a tax liability if she repurchased the Sears stock herself with the proceeds.

¶ 10 Both before and after the Walker Lane sale, the parties had several discussions regarding Almon’s breach of the Agreement. There was conflicting evidence presented at trial regarding the substance of these discussions; however, it is clear that the parties were never able to agree upon a course of action to resolve Almon’s breach of the Agreement or upon the effect of Noel’s receipt of the sale proceeds.

¶ 11 On November 20, 1997, Noel filed a complaint against Almon, alleging causes of action for breach of contract and breach of fiduciary duty. Almon failed to arrive timely for the pretrial conference, and, as a result, the trial court entered his default. After his default was entered at the pretrial conference, Noel withdrew the jury demand contained in her complaint. Accordingly, the trial court scheduled and conducted a bench trial after setting aside Almon’s default.

¶ 12 On the first day of trial, at the request of Almon’s trial counsel, the parties and the trial court had a discussion about the propriety of Noel’s withdrawal of her jury demand while Almon was in default and whether the case should be tried to a jury or to the bench. At the conclusion of this discussion, the trial court ruled that Almon had waived his right to a jury trial and that the case would be tried to the bench.

¶ 13 After a two-day bench trial, the trial court made several findings and conclusions. In reference to Noel’s claims relating to the Agreement, the trial court determined that: (1) the Agreement “is clear and unambiguous”; (2) Almon breached the Agreement; (3) the Agreement “anticipated only one circumstance in which the Sears [sjtock could be sold, namely, if Covey & Co. executed on [it] to satisfy” Almon’s margin account at Covey & Co.; (4) under the Agreement, the parties intended “that the Sears [s]tock be returned” unless Covey & Co. executed on it to satisfy Almon’s margin account at Covey & Co.; (5) “[t]he option of recording the Warranty Deed was not the sole remedy for [Almon’s] failure to return the Sears [s]tock”; and (6) “specific performance should be granted to Noel ... and Almon ... shall purchase and replace the Sears [s]tock.” In reference to Noel’s duty to mitigate damages, the trial court determined that “Almon ... did not carry his burden of proof that Noel ... failed to take reasonable steps to mitigate her damages” and that “[t]here has been no failure by Noel ... to mitigate damages.” In reference to Noel’s claims for breach of fiduciary duty, the trial court determined that “[a]s [Noel’s] stockbroker, Al-mon ... owed fiduciary duties to his customer, Noel”; that these “fiduciary duties were owed by him, personally and individually, to his customer, Noel”; and that Noel “proved by a preponderance of the evidence that Al-mon ... violated his fiduciary duties to [Noel] and that she was damaged by this breach of fiduciary duties.”

¶ 14 In accordance with these determinations, the trial court entered judgment against Almon, in relevant part, for: (1) Al-mon’s specific performance under the Agreement; (2) damages for the losses incurred in Noel’s account at Covey & Co., plus interest; (3) Noel’s lost dividends on the Sears stock, plus interest; and (4) Noel’s attorney fees and costs. Almon appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 15 First, Almon argues that the trial court erred in ruling that he waived his right to a jury trial. “We review the trial court’s finding that [he] waived [his] light to a jury trial for an abuse of discretion.” Aspenwood, L.L.C. v. C.A.T., L.L.C., 2003 UT App 28,¶ 33, 73 P.3d 947, cert. denied, 72 P.3d 685 (Utah 2003).

¶ 16 Second, Almon argues that the trial court misinterpreted the terms of the Agreement. Almon further argues that, based upon this misinterpretation, the trial court made certain findings of fact that are inconsistent and not supported by sufficient evidence. “Interpretation of the terms of a contract is a question of law. Thus, we accord the trial court’s legal conclusions regarding the eonti-act no deference and review them for correctness.” Nova Cas. Co. v. Able Constr., Inc., 1999 UT 69,¶ 6, 983 P.2d 575. “[W]e review the trial court’s findings of fact for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.” ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct.App.1997).

¶ 17 Third, Almon argues that the trial court erred in determining that Noel had not failed to mitigate her damages. “[W]e review the trial court’s legal conclusions for correctness, granting [them] no particular deference....” Id. “On the other hand, we review the trial court’s findings of fact for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.” Id. For a mixed question of law and fact, which requires a trial court to determine “whether a given set of facts comes within the reach of a given rule of law,” State v. Pena, 869 P.2d 932, 936 (Utah 1994), “we [still] review legal questions for correctness, [but] we may ... grant a trial court discretion in its application of the law to a given fact situation.” Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998).

¶ 18 Fourth, Almon argues that the trial court abused its discretion by ordering specific performance. “Specific performance as a remedy will stand and will not be upset on appeal in the absence of an abuse of discretion.” Spears v. Warr, 2002 UT 24,¶ 42, 44 P.3d 742.

¶ 19 Fifth, Almon argues that, in addressing one of Noel’s claims unrelated to the Agreement, the trial court erred in determining that he was personally liable for damages resulting from his breach of fiduciary duty owed to Noel. “[W]e review the trial court’s legal conclusions for correctness, granting [them] no particular deference.... ” ProMax, 943 P.2d at 255. “On the other hand, we review the trial court’s findings of fact for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.” Id. For a mixed question of law and fact, which requires a trial court to determine “whether a given set of facts comes within the reach of a given rule of law,” Pena, 869 P.2d at 936, “we [still] review legal questions for correctness, [but] we may ... grant a trial court discretion in its application of the law to a given fact situation.” Jeffs, 970 P.2d at 1244.

ANALYSIS

I. Waiver of Jury Trial

¶ 20 Almon argues that the trial court erred in ruling that he waived his right to a jury trial. Even if Almon is correct in his assertion that the trial court abused its discretion by making this ruling, his argument fails to demonstrate how this alleged error was harmful or prejudicial to him in any way.

¶ 21 “Harmless error is defined ... as an error that is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.” Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991) (quotations and citations omitted). “Put in other words, an error is harmful only if the likelihood of a different outcome is sufficiently high as to undermine our confidence in the verdict.” Id. “On appeal, the appellant has the burden of demonstrating an eiTor was prejudicial — that there is a reasonable likelihood that the error affected the outcome of the proceedings.” Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 489 (Utah Ct.App.1991) (quotations and citation omitted), aff'd, 862 P.2d 1342 (Utah 1993).

¶22 Because Almon has failed to carry his burden under our harmless error analysis by demonstrating that the alleged error committed by the trial court was prejudicial, his argument is without merit and we affirm the ruling of the trial court.

II. Interpretation of Agreement and Findings of Fact

¶ 23 Almon argues that the trial court misinterpreted the basic terms of the Agreement, and that, because of this misinterpretation, the trial court made certain findings of fact that are inconsistent and not supported by sufficient evidence. First, Almon asserts that the trial court improperly determined that the Agreement anticipated only one circumstance in which Noel agreed to the sale of the Sears stock. Second, Almon asserts that the trial court improperly determined that the Agreement did not provide Noel’s exclusive remedy once she received the Walker Lane sale proceeds and that, based upon this determination, the trial court erred when it found that: (1) Noel consented to remove her Notice of Interest from the Walker Lane property so that the Walker Lane sale could proceed, but only if the net proceeds from the sale “were to be left with her as a form of collateral and security for Almon’s duty to return the Sears [sjtock and restore her to the position she would have been in had he timely returned the Sears [s]tock”; (2) Noel “retained the net proceeds of the Walker Lane [s]ale as a form of escrow, collateral and security for [Almon’s] obligations to repurchase and restore the Sears [s]tock ..., and for obligations of [Al-mon] to her”; and (3) Noel “did not retain the net sales proceeds of the Walker Lane sale pursuant to any common understanding, or any accord and satisfaction, with Almon ... as satisfaction of any of [Almon’s] debts.”

¶24 After reviewing the Agreement, we conclude that the trial court’s interpretation of it was correct. We also conclude that the findings Almon challenges are consistent with one another and supported by sufficient evidence.

1Í25 First, the trial court properly determined that the Agreement “anticipated only one circumstance in which the Sears [s]tock could be sold, namely, if Covey & Co. executed on the Sears [s]tock to satisfy margin requirements in [Almon’s] margin account at Covey & Co.” (Emphasis added.) Paragraph 1 is the only portion of the Agreement that discusses a sale or transfer of ownership of the Sears stock and it states:

[Noel] authorizes [Almon] to deliver [the Sears stock] to the brokerage firm as collateral on [Almon’s] margin account, provided that [Almon] enters into an appropriate pledge agreement with the brokerage firm under the terms of which ownership of the [Sears stock] shall not be transferred unless and until the brokerage firm executes on the collateral to cover the required margin in accordance with the terms of the pledge agreement and the requirements under [Almon’s] margin account.

The remainder of the Agreement does not discuss a sale or transfer of ownership of the Sears stock, but instead discusses events where Almon “fails to return” or “does not return” the Sears stock to Noel. This demonstrates that the parties intended to identify one specific circumstance where they agreed that the Sears stock could be sold — Covey & Co.’s execution on the Sears stock to satisfy Almon’s margin account — and separate it from all other circumstances in which Almon failed to reton the Sears stock to Noel. Although Almon’s failure to return the Seal's stock could have resulted from a sale of some kind, the Agreement specifies only one circumstance in which Noel agreed to a sale. Otherwise, Noel agreed and expected Almon to return the Sears stock to her.

¶ 26 Second, the trial court properly determined that Noel’s receipt of the Walker Lane sale proceeds was not her exclusive remedy under the Agreement. Paragraph 5 of the Agreement states that, in the event Almon failed to return the Sears stock to Noel, she was “entitled to take title to the [Walker Lane property] in lieu” of the Sears stock. (Emphasis added.) Paragraph 6(c) of the Agreement states that “any single or partial exercise of any ... remedy” shall not “preclude ... the exercise of any other ... remedy under [the] Agreement” and that the remedies provided in the Agreement “are cumulative and not exclusive of any remedies provided by law.” Under Paragraph 5, Noel was entitled to take title to the Walker Lane property or, alternatively, the proceeds from the Walker Lane sale when Almon faded to return the Sears stock; however, she was not required to do this as her sole, or even partial, remedy under the Agreement. Under Paragraph 6(c), her receipt of the Walker Lane sale proceeds was not her exclusive remedy under the Agreement because she was not precluded from exercising any other remedy under the Agreement or provided by law. Moreover, as discussed below, the trial court was presented with sufficient evidence to support its finding that Noel received the Walker Lane sale proceeds not as a remedy or as an accord and satisfaction, but rather as substitute collateral to ensure that Almon would return the Sears stock to her.

¶ 27 Finally, we conclude that the findings of fact challenged by Almon are consistent with one another and supported by sufficient evidence in the record before us. In order to successfully challenge the trial court’s findings of fact, Almon “must first marshal all the evidence in support of the findingfs] and then demonstrate that the evidence is legally insufficient to support the finding[s] even when viewing it in a light most favorable to the court below.” ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct.App.1997) (quotations and citations omitted).

¶ 28 The portions of the three challenged findings quoted in Almon’s brief are taken out of context and Almon’s argument misapprehends the findings in several instances. When read together in their entirety, the three findings are entirely consistent with one another. In addition, the three findings are supported by the evidence presented at trial. Although Almon marshals the evidence in support of the findings, he does not demonstrate that this evidence is “legally insufficient to support the finding[s] even when viewing it in a light most favorable to the court below.” Id. (quotations and citations omitted). Instead, Almon argues the evidence supporting his position and states that the trial court “ignored” this evidence because of its misinterpretation of the Agreement. Because we have already concluded that the trial court’s interpretation of the Agreement is proper, Almon’s argument is an attempt to have us reconsider conflicting evidence presented at trial. We note that

[tjrial courts are accorded wide latitude in determining factual matters. They are in the best position to assess the credibility of the witnesses and to gain a sense of the proceeding as a whole. Where contradictory testimony is offered ..., the fact finder is free to weigh the conflicting evidence presented and to draw its own conclusions.

Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998) (quotations and citations omitted). Almon’s argument “is nothing but an attempt to have this [c]ourt substitute its judgment for that of the trial court on a contested factual issue. This we cannot do under Utah Rule of Civil Procedure 52(a).” Newmeyer v. Newmeyer, 745 P.2d 1276, 1278 (Utah 1987); see ProMax, 943 P.2d at 255 (“To succeed in its challenge to findings of fact, [appellant] may not simply reargue its position based on selective excerpts of evidence presented to the trial court.”). We conclude that the three challenged findings are not “against the clear weight of the evidence” and, therefore, are not clearly erroneous. ProMax, 943 P.2d at 255.

III. Mitigation of Damages

¶ 29 Almon argues that the trial court erred in determining that Noel had not failed to mitigate her damages.

Damages awarded for breach of contract should place the nonbreaching party in as good a position as if the contract had been performed. However, under the doctrine of unavoidable consequences the non-breaching party has an active duty to mitigate his damages, and he may not, either by action or inaction, aggravate the injury occasioned by the breach.

Mahmood v. Ross, 1999 UT 104,¶ 31, 990 P.2d 933 (quotations and citations omitted). In order to satisfy the duty to mitigate damages, a nonbreaching party must make “reasonable efforts and expenditures.” Madsen v. Murrey & Sons Co., 743 P.2d 1212, 1214 (Utah 1987) (quotations and citations omitted); see Angelos v. First Interstate Bank of Utah, 671 P.2d 772, 777 (Utah 1983) (stating that mitigation of damages requires non-breaching party to avoid damages by “reasonable means”). “However, the burden of proving [that the] plaintiff has not mitigated ... damages ... is on defendant.” John Call Eng’g, Inc. v. Manti City Corp., 795 P.2d 678, 680 (Utah 1990). “It is not a plaintiffs burden to produce the evidence on which any reduction of damages is to be predicated.” Id. (quotations and citations omitted).

¶ 30 Although Noel could have used the Walker Lane sale proceeds to repurchase the Sears stock, she had no obligation to do so under the Agreement or under her duty to mitigate damages. Almon, “who chose not to perform [his] obligation when costs were lower, cannot now complain about the increased cost of performance.” Alexander v. Brown, 646 P.2d 692, 695 (Utah 1982). Noel was under

no obligation to mitigate damages by taking action which [Almon himself] refused to take. [Almon] had the same opportunity as [Noel] to decrease damages ..., yet declined to do so. Whei-e the party having the primary duty for performance has the same opportunity to perform and the same knowledge of the consequences of nonperformance as the party to whom the duty is owed, he cannot complain about the failure of the latter to perform this duty for him.

Id.

¶ 31 The trial court determined that “[Al-mon] did not carry his burden of proof that [Noel] failed to take reasonable steps to mitigate her damages.” The trial court properly placed the burden of proof on the issue of mitigation of damages upon Almon, see John Call Eng’g, Inc., 795 P.2d at 680, and there is sufficient evidence in the record before us to support the trial court’s determination that Almon did not carry his burden of proving that Noel failed to make “reasonable efforts and expenditures” to mitigate her damages. Madsen, 743 P.2d at 1214 (quotations and citations omitted). Therefore, we conclude that the trial court properly determined that Noel did not fail to mitigate her damages.

IV. Specific Performance

¶ 32 Almon argues that the trial court abused its discretion by ordering specific performance. Almon asserts that specific performance was inappropriate because he was placed in an “unfair position” when Noel retained the Walker Lane sale proceeds, which prevented him from repurchasing the Sears stock, and was able “to wait and see whether the price of Sears stock went up or down before filing a lawsuit” against Almon. “Specific performance is a remedy of equity which is addressed to the sense of justice and good conscience of the [trial] court, and accordingly, considerable latitude of discretion is allowed in [the] determination as to whether it shall be granted and what judgment should be entered....” Morris v. Sykes, 624 P.2d 681, 684 (Utah 1981).

¶ 33 As we have noted, while Noel’s possession of the Walker Lane sale proceeds may have created difficulties for Almon in repurchasing the Sears stock, she had no obligation under the Agreement to use the proceeds to repurchase the Sears stock, either on her own or at Almon’s direction. Evidence was presented at trial indicating that Noel had tax liability concerns about repurchasing the Sears stock herself with the Walker Lane sale proceeds, while at the same time having concerns about giving the proceeds to Almon to repurchase the Sears stock for her in the absence of a written agreement requiring him to do so. The trial court determined, and we agree, that Noel held the Walker Lane sale proceeds as a form of collateral to ensure that her desired remedy under the Agreement — specific performance — was fulfilled. Therefore, we conclude that under these circumstances, the trial court did not abuse its discretion by granting specific performance.

V. Personal Liability

¶ 34 Almon argues that, in addressing one of Noel’s claims unrelated to the Agreement, the trial court erred in determining that he was personally liable for damages resulting from his breach of fiduciary duty owed to Noel. In essence, Almon argues that the trial court was required to find that the corporate veil of Covey & Co. should be pierced as a prerequisite to finding that Al-mon was personally liable for his breach of fiduciary duty to Noel.

¶ 35 Almon’s argument is misplaced. Noel’s amended complaint contained a cause of action against Almon, not Covey & Co., for his breach of fiduciary duty to Noel. Further, there is evidence in the record before us that supports the trial court’s determinations that Almon breached a fiduciary duty he owed to Noel and that he was thereby personally liable for the damages resulting from this breach. Therefore, we conclude that the trial court properly determined that Almon was personally liable for damages resulting from his breach of fiduciary duty owed to Noel.

VI. Attorney Fees

¶ 36 Noel requests attorney fees on appeal. “[A] provision for payment of attorneyt ] fees in a contract includes attorney[] fees incurred by the prevailing party on appeal as well as at trial, if the action is brought to enforce the contract....” Management Servs. Corp. v. Development Assocs., 617 P.2d 406, 409 (Utah 1980). “In addition, when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (quotations and citations omitted). Because the Agreement provides for attorney fees and because Noel was awarded attorney fees below, we conclude that she is entitled to reasonable attorney fees incurred as a result of this appeal.

CONCLUSION

¶ 37 First, we conclude that even if the trial court erred by finding that Almon had waived his right to a jury trial, it was harmless error. Second, we conclude that the trial court correctly interpreted the Agreement and that the three findings Almon challenges are not clearly erroneous. Third, we conclude that the trial court’s finding that Noel had not failed to mitigate her damages was not clearly erroneous. Fourth, we conclude that the trial court did not abuse its discretion in ordering specific performance. Fifth, we conclude that the trial court eor-rectly ruled that Almon was personally liable for the damages resulting from his breach of fiduciary duty to Noel. Finally, we conclude that Noel is entitled to reasonable attorney fees incurred as a result of this appeal and we remand for the limited purpose of determining this amount.

¶ 38 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and RUSSELL W. BENCH, Judge.

      . In the Agreement, the parties also memorialized a previous loan transaction, in which Noel loaned Almon $50,000. This portion of the Agreement is not part of this appeal.

      . Noel later filed an amended complaint, but it did not alter the causes of action.

      . Although two attorneys who represented Al-mon at trial were present at the pretrial conference, neither of them had entered an appearance of counsel for Almon with the trial court. During the pretrial conference, these attorneys indicated to the trial court that they were appearing at the pretrial conference only as "friend[s] of the court.” Accordingly, the trial court could not and did not allow them to appear on behalf of Almon at the pretrial conference.

      . Even if we were to reach the merits of this argument, we would uphold the trial court’s ruling. Although we may disagree with the trial court’s use of the term "waiver,” we agree with its conclusion that, under the facts of this case, Almon was not entitled to a jury trial.
      Rule 38 of the Utah Rules of Civil Procedure governs the right to a jury trial. In Amica Mutual Insurance Co. v. Schettler, we considered the effect of rule 38 upon facts similar to those of this case. See 768 P.2d 950, 962-64 (Utah Ct.App.1989). In Schettler, the “[plaintiff] requested a jury trial and subsequently withdrew its request following the entry of [defendant]’s default. Thereafter, [defendant] requested a jury trial.” Id. at 963. In identifying the appropriate rule to apply to the facts of Schettler, we stated that "[r]ule 38(b) ... provides that any party may demand a trial by jury and subsection (d) provides that once made, a demand for a jury trial may not be withdrawn without the consent of [both] parties.” Schettler, 768 P.2d at 963; see Utah R. Civ. P. 38(b), (d). We concluded, however, that "the consent requirement of [rule] 38(d) does not apply once default has been entered" and that the trial court properly allowed the plaintiff "to unilaterally withdraw its jury demand following the entry of [defendant’s] default.” Schettler, 768 P.2d at 963.
      In this case, Noel’s complaint included a jury demand. When Almon failed to arrive timely for the pretrial conference, the trial court entered his default. It was after the entry of Almon's default that Noel withdrew her jury demand. In accordance with the holding of Schettler, we conclude that "the consent requirement of [rule] 38(d) does not apply once default has been entered” and that the trial court properly allowed Noel "to unilaterally withdraw [her] jury demand following the entry of [Almon's] default.” Id.

      In response to Schettler, Almon argues that its holding is inapplicable in this case because the trial court’s decision to set aside Almon’s default "mandates that the parties be returned to the status quo ante” under Erickson v. Schenkers International Forwarders, Inc., 882 P.2d 1147, 1149 (Utah 1994). To return the parties to the "status quo ante,” id., Almon argues that the trial court must disregard Noel's withdrawal of her jury demand, thereby rendering the analysis and holding of Schettler inapplicable to this case. Almon’s reliance upon Erickson is misplaced and his argument is without merit. Erickson does not stand for the proposition that a decision to set aside an entry of default "mandates that the parties be returned to the status quo ante.” Erickson addressed a motion to set aside a default judgment, see id. at 1147, not an entry of default. See Pennington v. Allstate Ins. Co., 973 P.2d 932, 940 n. 4 (Utah 1998) (describing difference between entry of default and entry of default judgment). Moreover, the Erickson court used the term "status quo ante” in a completely different context than the one asserted by Almon. See Erickson, 882 P.2d at 1149 (determining that there was a "restoration of the status quo ante” when two of the three requirements were satisfied under the “excusable neglect” standard for setting aside a default judgment under rule 60 of the Utah Rules of Civil Procedure). Consequently, the holding of Erickson has no application in this case.

      . In reference to the second challenged finding, Almon's brief states that it stands for the proposition that "the funds were held pursuant to an escrow agreement.” Although the trial court used the term "escrow” in this finding, that does not indicate that an “escrow agreement” was created. The finding states that the proceeds of the Walker Lane sale were held by Noel “as a form of escrow, collateral and security.” When read in context with the first challenged finding, which states that the proceeds of the Walker Lane sale were held by Noel “as a form of collateral and security," it is clear that the second challenged finding does not reference an "escrow agreement” in the literal or legal sense.
      In reference to the first and third challenged findings, Almon attempts to persuade us that they contradict one another. Almon asserts that because the first challenged finding "depicts an agreement” between the parties and the third challenged finding indicates that there was no "common understanding” between the parties, they are inconsistent and cannot both be correct. Almon misapprehends these two findings. The first challenged finding indicates that there was an agreement between the parties that Noel would remove her Notice of Interest on the Walker Lane property so that the Walker Lane sale could proceed, provided that she could retain the net sale proceeds as a form of collateral and security for Almon's duty to return the Sears stock to her. The third challenged finding indicates that there was no "common understanding, or any accord and satisfaction" between the parties under which Noel would retain the Walker Lane sale proceeds "as satisfaction of any of [Almon's] debts." These two findings clearly reference different matters and, therefore, are not contradictory.


text:
    2003 UT App 375
    J. POCHYNOK COMPANY, INC., a corporation, Plaintiff and Appellant, v. Gregory SMEDSRUD; Louann Smedsrud; Butterfield Lumber, Inc., a corporation; Pella Products, Inc., a corporation; et al., Defendants and Appellees.
    No. 20020940-CA.
    Court of Appeals of Utah.
    Nov. 6, 2003.

      Brett D. Cragun, Ray G. Martineau, and Anthony R. Martineau, Salt Lake City, for Appellant.
    Vincent C. Rampton and Ross I. Romero, Jones Waldo Holbrook & McDonough, Salt Lake City, for Appellees.
    Before JACKSON, P.J., BILLINGS, Associate P.J. and GREENWOOD, J.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Pochynok Company, Inc. (Pochynok) appeals the trial court’s posttrial order awarding costs and attorney fees to Gregory and Louann Smedsrud (the Smedsruds) and upholding garnishment of Pochynok’s account at Zions First National Bank over its objections. We affirm.

BACKGROUND

¶2 In August 1998, Pochynok and the Smedsruds entered into a construction contract wherein Pochynok agreed to build a residence for the Smedsruds in Summit County and in return the Smedsruds agreed to pay Pochynok for his services as a general contractor. On January 13, 2000, Pochynok filed a complaint against the Smedsruds alleging breach of contract arising from the Smedsruds’ failure to pay $81,269.91 for services rendered. Pursuant to the Utah mechanics’ liens statute, Pochynok sought to foreclose a mechanics’ lien on the Smedsruds’ Summit County property to recover the unpaid amounts. The Smedsruds counterclaimed for breach of the same construction contract alleging defective workmanship, delay damages, and failure to supervise. On May 9, 2002, pursuant to rule 68 of the Utah Rules of Civil Procedure and Utah Code Annotated section 38-1-18(3) (2001), the Smedsruds submitted an offer of judgment in the amount of $40,000, which Pochynok did not accept. A jury trial ensued in late-May 2002. At the conclusion of trial, the jury rendered a verdict awarding $7,076.56 to Po-chynok.

¶3 Thereafter, both Pochynok and the Smedsruds filed posttrial motions claiming to be the “successful party” for purposes of the mechanics’ liens statute, and requesting costs and attorney fees. In addition, the Smeds-ruds asserted that under section 38-1-18(3), they were entitled to costs and attorney fees incurred after May 9, 2002, because Pochy-nok did not accept the Smedsruds’ offer of judgment, which was more favorable than the subsequent jury award for Pochynok.

¶ 4 The trial court determined the Smeds-ruds were the successful party under the mechanics’ liens statute, and accordingly granted the Smedsruds’ motion to tax costs and attorney fees to Pochynok. Concurrently, the trial court ordered Pochynok to pay the Smedsruds $49,990.04 in costs and attorney fees incurred prior to May 9, 2002, and $34,046.50 in costs and attorney fees incurred after May 9, 2002, for a total award of $84,036.54.

ISSUES AND STANDARDS OF REVIEW

¶ 5 First, Pochynok claims the trial court erred in determining the Smedsruds were the “successful party” under the amended mechanics’ liens statute. Utah Code Ann. § 38-1-18(1) (2001). “We ... 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. Pochy-nok also asserts the trial court erred in giving retroactive effect to subsection 3 of Utah’s mechanics’ liens statute. See Utah Code Ann. § 38-1-18(3). “ ‘Whether a[n amended] statute operates retroactively is a question of law, which we review for correctness without deference to the [trial] court.’ ” State Dep’t of Human Servs. v. Jacoby, 1999 UT App 52,¶ 7, 975 P.2d 939 (quoting Evans & Sutherland Computer Corp. v. State Tax Comm’n, 953 P.2d 435, 437 (Utah 1997)).

¶ 6 Finally, Pochynok claims the trial court erred in finding Pochynok’s business account funds were not exempt from garnishment. See Utah R. Civ. P. 64D(h)(iii). “Appellate review [of factual findings] is highly deferential, requiring reversal only if a finding is clearly erroneous.” Drake v. State Indus. Comm’n, 939 P.2d 177, 181 (Utah 1997).

ANALYSIS

I. “Successful Party” Under Section 38-1-18(1) of the Mechanics’ Liens Statute

¶ 7 As the sole beneficiary of the jury verdict of $7,076.56, Pochynok claims to be the successful party under Utah Code Annotated section 38-1-18(1) (2001). Hence, Po-chynok argues the trial court erred in awarding costs and attorney fees to the Smedsruds. Subsection 1 of the mechanics’ liens statute provides that “in any action brought to enforce any lien under this chapter the successful party shall be entitled to recover a reasonable attorneys’ fee, to be fixed by the court, which shall be taxed as costs in the action.” Utah Code Ann. § 38-1-18(1).

¶ 8 Utah courts describe a “successful party” under the mechanics’ liens statute as the “party in whose favor a judgment is rendered ... the ‘prevailing party.’ ” A.K. & R. Whipple Plumbing & Heating v. Guy, 2002 UT App 73,¶ 11, 47 P.3d 92 (Whipple II) (quoting Black’s Law Dictionary 1145 (7th ed.1999)), cert. granted, 2002 Utah LEXIS 187, 59 P.3d 603. However, the successful or prevailing party “may [be] the party who defended against the lien.” Bailey-Allen Co., Inc. v. Kurzet, 876 P.2d 421, 428 (Utah Ct.App.1994) (citing Palombi v. D & C Build ers, 22 Utah 2d 297, 452 P.2d 325, 327-28 (1969)); see also Whipple II, 2002 UT App 73 at ¶ 9, 47 P.3d 92 (“A successful party includes, but is not limited to, one who successfully enforces or defends against a lien action”).

¶ 9 Utah appellate courts “have addi'essed [various] methodologies for determining which party or parties ... occupy prevailing party status” under the circumstances of a particular case. Whipple II, 2002 UT App 73 at ¶ 12, 47 P.3d 92. Citing to Whipple II, Pochynok contends that the trial court should have employed a “net recovery” or “net judgment” analysis to determine the successful party in this case. Pochynok misconstrues our reasoning in Whipple II and ignores our holding in that case. The facts underlying Whipple II are detailed in A.K. & R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87, 977 P.2d 518 (Whipple I). The case involved a plaintiff subcontractor who obtained a trial judgment for $3,943.00 and an order allowing foreclosure on three mechanics’ liens against the defendant general contractor. See id. at ¶ 1, 977 P.2d 518. Determining the plaintiff was the successful party under the mechanics’ liens statute, the trial court awarded the plaintiff $7,500.00 in attorney fees. See id. at ¶ 9, 977 P.2d 518.

¶ 10 On appeal however, we vacated a portion of the trial court’s order because the plaintiff was not properly licensed to perform some of the work for which it obtained judgment. See id. at ¶¶ 12, 21, 977 P.2d 518. In light of our disposition of the judgment, we also remanded the attorney fees issue “for a redetermination of the prevailing party and a proper allocation of attorney fees to that party.” Id. at ¶ 40, 977 P.2d 518.

¶ 11 On remand, the trial court denied the plaintiffs claim for foreclosure on the mechanics’ lien relating to the work the plaintiff was not licensed to complete. See Whipple II, 2002 UT App 73 at ¶ 5, 47 P.3d 92. Based on the plaintiffs resulting net recovery, the trial court determined that the “outcome was essentially a ‘draw”’ and concluded neither party prevailed for purposes of awarding attorney fees under the mechanics’ liens statute. Id.

¶ 12 On appeal for the second time, the defendant argued that because the trial court’s calculations on remand resulted in a $527.00 net recovery for the defendant, the trial court should have awarded the defendant attorney fees as the successful party under the mechanics’ liens statute. See id. at ¶¶ 5-6, 47 P.3d 92. Like Pochynok, the defendant argued the trial court’s successful party determination should have been wholly based on a net recovery analysis. See id. at ¶ 10, 47 P.3d 92. This court was not persuaded. Noting that “[t]he facts and circumstances surrounding a determination of prevailing party status vary widely,” we declared “the ‘net recovery rule’ is [merely] a starting point and need not be applied strictly” to every prevailing party determination. Id. at ¶¶ 18, 20, 47 P.3d 92. We directed Utah courts to employ “ ‘a flexible and reasoned approach to deciding in particular cases who actually is the prevailing party.’ ” Id. at ¶ 15, 47 P.3d 92 (quoting Occidental/Nebraska Fed. Sav. Bank v. Mehr, 791 P.2d 217, 221 (Utah Ct.App.1990)). Furthermore, “[a] key part of the flexible approach” involves using “common sense” to “look[ ] at the amounts actually sought and then balance] them proportionally with what was recovered.” Id. at ¶ 19, 791 P.2d 217. On this reasoning we affirmed the trial court’s determination that neither party was the successful party under the mechanics’ liens statute. See id. at ¶ 21, 791 P.2d 217.

¶ 13 Two other Utah cases, neither decided under the mechanics’ liens statute, are instructive. In Mountain States Broadcasting Company v. Neale, 783 P.2d 551 (Utah Ct.App.1989), we applied the net judgment rule to determine that a party who obtained an $85,000 net recovery. — about 60% of the amount sought — was the successful party for purposes of a contractual fee shifting provision. See id. at 556, 558. However, we cautioned that when making a successful party determination, a trial court should only apply the net judgment rule when doing so “does not distort the relative success of the parties at trial.” Id. at 558. We further cautioned that “nothing in our opinion should be taken to suggest that the net judgment rule can be mechanically applied in all cases.” Id. at 557. In some eases, we held, the net judgment rule is merely “a good starting point” in a much more “flexible and reasoned approach to deciding in particular cases who actually is the prevailing party,” id. (quotations omitted), such as “where the ultimate award of money damages does not adequately represent the actual success of the parties under the peculiar posture of the ease.” Id. at 556 n. 7 (citing Owen Jones & Sons, Inc. v. C.R. Lewis Co., 497 P.2d 312, 313-14 (Alaska 1972)).

¶ 14 In Occidental/Nebraska Federal Savings Bank, this court made a prevailing party determination in a case arising under Utah’s real estate conveyances statute. See id. at 221-22 (citing Utah Code Ann. §§ 57-1-24, -32 (1974)). These statutes (1) empower a trust deed trustee to sell trust property if the trustor breaches a secured obligation and (2) award costs and attorney fees to the prevailing party in any action to recover the balance due upon the obligation for which the trust deed was given as security. See id. at 219, 221. In Occidental/Nebraska Federal Savings Bank, the plaintiff brought an action to recover a remaining balance of over $600,000. See id. at 222. The trial court awarded costs and attorney fees to the defendant as the prevailing party because the plaintiff recovered only about $7,300 of the $600,000 amount at trial. See id. On appeal, the plaintiff, like Pochynok, argued the trial court should have applied the net recovery rule and declared the plaintiff the prevailing party by virtue of the jury award in the plaintiffs favor. See id. at 222. Rejecting this argument, this court applied the “ ‘flexible and'reasoned approach’ ” as outlined in the Mountain States Broadcasting Company case. See Occidental/Nebraska Federal Savings Bank, 791 P.2d at 221 (quoting Mountain States Broadcasting Co., 783 P.2d at 556 n. 7). As such, we affirmed the trial court’s determination that the defendant was the successful party where the defendant prevailed on the only contested issue at trial— the deficiency amount. See id. at 222.

¶ 15 We, like the trial judge in this case, are persuaded that an application of the net judgment rule in the case before us, “distort[s] the relative success of the parties at trial,” Mountain States Broadcasting Co., 783 P.2d at 558, and is therefore inappropriate. Instead, like the Whipple II court, we apply a flexible and reasoned approach. See Whipple II, 2002 UT App 73,¶¶ 19, 21, 47 P.3d 92. Furthermore, because prevailing party status “depends, to a large measure, on the context of each case, ... the trial court is in a better position than we are as an appellate court to decide which party is the prevailing party.” R.T. Nielson Co. v. Cook, 2002 UT 11,¶ 25, 40 P.3d 1119.

¶ 16 Pochynok initially sought to recover over $80,000 from the Smedsruds. At trial, a jury determined that Pochynok’s claim was only worth $7,076.56. Thereupon, the trial court properly recognized that Pochynok’s action, against which the Smedsruds had no choice but to defend, only produced a net recovery of approximately 10% of the amount Pochynok initially sought.

¶ 17 Here, the jury’s verdict form does not provide precise calculations of offsets the jury may have made for the Smedsruds’ counterclaims for faulty workmanship, delay damages, and improper supervision. However, from the verdict, the trial court could have reasonably inferred such offsets by simply subtracting the jury’s verdict of $7,076.56 from the $81,269.91 that Pochynok sought to recover in the lien enforcement action. The trial court could have reasonably concluded that the jury in fact found in favor of the Smedsruds on their counterclaims and offset these damages in the amount of $74,193.35 from Pochynok’s initial claim.

¶ 18 Furthermore, the mechanics’ liens statute was amended in 2001 to specify the prevailing party where a proper offer of settlement is made. See Utah Code Ann. § 39-1-18(3) (2001) (Amendment Notes). An examination of the effects of subsection 3 is relevant to determining who is a successful party under section 38-1-18(1). The legislative history of subsection 3 indicates as much. Under the title, “Penalty for Wrongful Mechanics Lien,” Senate Bill 167 proposed amendments to three sections of the Utah Code: sections 38-1-18, -25; and section 58-55-501, in an effort to curb wrongful, outrageous, and fraudulent lien claims. See S.B. 167, 2001 Leg., 53d Sess. (Utah 2001). A note, proposing the amendment adding subsection 3 and speaking to the bill’s intent, is instructive.

In my view, the primary inequity in the mechanic’s [sic] lien law as it currently operates is that a party can assert a claim for much more than he or she is legitimately owed forcing a defendant to litigate the claim, and yet still be entitled to attorney[ ] fees as the “prevailing party” even if the lien claimant only recovers a fraction of what was originally claimed.

¶ 19 While the note envisions a simple definition of successful party, it is clear the intent of the amendment is to discourage outrageous lien claims and to encourage the settlement of lawsuits which are of minor financial value. Thus, we think the trial court’s consideration of the refused offer of judgment in this case was appropriate in its successful party determination.

¶ 20 Given the potential for a distorted determination of the relative success of the parties by application of the net judgment rule to the facts of this case, we conclude the trial court wisely applied a more flexible and reasoned approach to its successful party determination. Thus, we conclude the trial court did not abuse its discretion in finding the Smedsruds were the successful party under the mechanics’ liens statute and affirm the trial court’s award of $84,036.54 in attorney fees and costs.

II. Garnishment

¶ 21 Pochynok also argues the trial court erred in finding the funds in Pochy-nok’s company business bank account were not exempt from garnishment by the Smeds-ruds where Pochynok claimed the funds did not belong to Pochynok. In Utah, there is a rebuttable presumption that the funds in a bank account belong to the account owner. See Peterson v. Peterson, 571 P.2d 1360, 1362 (Utah 1977). Hence, to avoid garnishment, a garnishee account owner must show by clear and convincing evidence that the funds belong to someone else. See id. The record reflects that Pochynok requested a hearing to claim an exemption to garnishment pursuant to Utah Rule of Civil Procedure 64(D)(h). However, the record also reveals that prior to and during the hearing, Pochynok failed to present any evidence to the trial court in support of its claim of exemption. With no competent evidence to counter the Smeds-ruds’ position, the trial court did not clearly err in finding the funds were subject to garnishment.

CONCLUSION

¶22 We conclude that the trial court did not err in determining the Smedsruds were the successful party under the mechanics’ liens statute and awarding the Smedsruds attorney fees and costs. We also conclude the court did not err in determining the funds in Pochynok’s company bank account were subject to garnishment by the Smeds-ruds. We affirm the trial court’s award of costs and attorney fees to the Smedsruds and the garnishment of Pochynok’s company account.

¶23 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, PAMELA T. GREENWOOD, Judge.

      . See Utah Code Ann. §§ 38-1-1 to 29 (2001 & Supp.2003).

      . In 2001, the Utah Legislature amended Utah's mechanics’ liens statute to include a provision governing offers of judgment in mechanics' lien disputes. See Utah Code Ann. § 38-1-18(3) (2001). The amendment became effective on April 30, 2001, after Pochynok filed its complaint, but before the Smedsruds filed their May 9, 2002 offer of judgment. See id. (Amendment Notes).

      . The verdict form does not indicate what damages, if any, were awarded to the Smedsruds to offset Pochynock's claimed damages of $81,269.91.

      .Although we need not reach the issue, we would hold that Utah Code Annotated section 38-1-18(3) (2001), which was enacted after Po-chynok filed its complaint in this matter, is procedural and thus applies in this case. Therefore, the Smedsruds alternatively could recover attorney fees from the date of their offer of judgment under subsection 3. Subsection 3 provides:
      A party against whom any action is brought to enforce a [mechanics’] lien ... may make an offer of judgment pursuant to [r]ule 68 of the Utah Rules of Civil Procedure [and i]f the offer is not accepted and the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall pay the costs and attorney[ ] fees incurred by the offeror after the offer was made.

        Id. § 38-1-18(3).
      To determine whether an amendment is substantive or procedural, we must examine whether or not the amendment "establishes a primary right and duty which was not in existence at the time [the claim] arose.” Johansen v. Johansen, 2002 UT App 75,¶ 5, 45 P.3d 520 (alteration in original) (quotations and citations omitted).
      Under the prior version of the statute, trial courts were already vested with discretion to award costs and attorney fees to one party or the other (i.e., the successful party) depending on the outcome of the dispute. See Utah Code Ann. § 38-1-18 (1997). Thus the amendment merely "provid[es] a different mode or form of procedure” for courts to employ in enforcing previously existing substantive rights and duties. Pilcher v. Department of Soc. Servs., 663 P.2d 450, 455 (Utah 1983) (deeming a child support enforcement statute procedural and giving it retroactive effect even though it was enacted ten years after the support order); see Utah Code Ann. § 38 — 1— 18(3) (2001). Authority from other jurisdictions supports a conclusion that attorney fee awards are procedural and can be applied retroactively. See McCormack v. Town of Granite, 913 P.2d 282, 285 (Okla.1996); Vloedman v. Cornell, 161 Or.App. 396, 984 P.2d 906, 909 (1999).

      . Pochynok utterly failed to marshal the evidence in challenging the trial court’s factual findings. See West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App.1991). For efficiency, we reach the merits of the claim notwithstanding.

      . Pochynok argues that the parties put on proof by proffer. However, even given the proffers made, we conclude the trial court did not err. Pochynok’s argument that the funds in the account were not subject to garnishment because those monies were intended to be used to pay subcontractors on other projects is without merit. The funds, once in Pochynok’s account, were owned by Pochynok. Thus, the decision to pay subcontractors with those funds, or to use the money elsewhere, was solely in the discretion of Pochynok. Under these facts no constructive trust arises. See Parks v. Zions First Nat’l Bank, 673 P.2d 590, 599 (Utah 1983) ("Constructive trusts include all those instances in which a trust is raised ... for the purpose of working out justice in the most efficient manner, where there is no intention of the parties to create such a relation, and in most cases contrary to the intention of the one holding the legal title ....”).