C. G. Horman Co. v. Lloyd , 28 Utah 2d 112 ( 1972 )

HENRIOD, Justice:

Appeal from a judgment dismissing the complaint and awarding judgment on defendants’ counterclaim for damages and attorney’s fees. Affirmed in part and reversed in part. No costs awarded.

There was no transcript of the record designated, so we have before us only the pleadings, exhibits,¹ the Findings and Conclusions in Case No. 31379, Fourth District Court, and the court’s Findings of Fact, Conclusions and Judgment in the instant case. Unless the Findings are in error and shown to be such by material, uncontroverted evidence, they are presumed to be correct.

We are of the opinion that most of the Findings reflect the facts accurately, but that some of them are not supported by the record, for reasons we shall relate.

The Findings pertinent to this decision may be summarized as follows: That in December, 1965, the parties executed a written contract having to do with the financing and construction of a motel. Hor-man agreed to aid and become obligated in the financing, for which he would obtain an interest in the facility as tenant in common with the defendants Lloyd. He jointly signed the mortgage note with Lloyds. Thereafter, Horman refused to participate in any further financing which was needed, unless acquiring an additional interest in the property and income. The Lloyds sought other avenues to obtain funds. In a subsequent written contract (dated February 23, 1967) the parties agreed that if Horman desired to assert any further claim in addition to what Lloyds had paid for Horman’s interest, it could be done by suit in the district court if filed within a year, in which case the court could review the original December, 1965, contract, and in which event Lloyds could assert any claims and offsets against any claim arising out of failure of Horman further to help finance the project. Such suit was filed on the 364th day.² The evidence showed Horman was not entitled to any further amount under the December, 1965, contract but Lloyds were entitled to damages for the new mortgage commitment fee and also attorney’s fees on their counterclaim, for the enforcement of an agreement incident to the further financing of the project, and that matters decided in a suit previously filed by the construction company against the Lloyds asserting a mechanic’s lien, were not res judicata.

In addition to the Findings made above, the record shows unequivocally that in the lien case mentioned in footnote 2 (Case No. 31379, Fourth District Court), the court in that case found that on February 23, 1967, the parties signed a contract, as implemented by another contract dated March 23, 1967, and another dated April 24, 1967, in which they “compromised and settled and fully released all claims existing between themselves” and that by reason thereof the court dismissed the Third-Party Complaint without prejudice to Lloyds’ right to state a defense or right of setoff against Horman in the instant case (31752) which was then pending. We believe this Finding was res judicata except as to defenses and offsets assertable by Lloyds in the instant case, in which the trial court used the language “claims and offsets,” which it found not to be res judi-cata. Irrespective of whether “claims” might be synonymous with “defenses,” it is undisputed that the parties agreed in the contract of February 23, 1967, after providing that Horman could file a suit within one year to determine rights under the December, 1965, agreement, that “Both parties agree to abide by the decision of the District Court and no appeal will be taken to the Supreme Court.” That agreement refers to the instant case (31752), and we believe and hold that irrespective of the Finding as to “defenses and offsets” by the court in the mechanic’s lien case, the agreement of the parties not to appeal is valid and should prevail, and we so hold.

In holding as we do, we are not unmindful of our rather recent case of Barnhart v. Civil Service Emp. Ins. Co.,³ which by a 3-2 decision struck down a compulsory arbitration agreement to arbitrate future disputes, found in an insurance policy as being against public policy on the grounds it ousted the courts of jurisdiction. That case is distinguishable from this one, where the parties did not agree to arbitration which might oust the court of jurisdiction, but on the contrary, agreed to seek the decision of the court. The only question, then, is whether, after having done so, they had agreed to waive their right of appeal, and, as a corollary, whether one by agreement cannot waive his right to appeal on the grounds of public policy. We believe and hold that the parties effectively did waive their right to appeal⁴ and that such agreement should be binding on the parties.⁵ Therefore we hold that the judgment on the counterclaim for $14,000 is affirmed. As to the judgment for $6,000 attorney’s fees it is reversed.

The record is barren of any evidence as to a reason for awarding attorney’s fees, the reasonable value thereof, or any agreement in writing providing therefor. Such fees are not awardable as costs since there is no statutory sanction therefor. Horman never promised to pay such fees, either orally or in writing, and they were unrecoverable at common law, and hence the trial court had no basis for awarding such fees. Lloyds cite no authority to justify their award, and the parties’ agreement to abide by the decision of the trial court only may extend to subject matter over which it has jurisdiction, but not as to subject matter about which the court has no authority whatever and about which the parties could have no judicially determinable dispute whatever under the facts of this case. We have enunciated this principle with respect to attorney’s fees twice by unanimous court in Holland v. Brown⁶ and Hawkins v. Perry,⁷ — and one hardly can agree not to appeal an issue over which the court has no jurisdiction.

A few words must be said about Mr. Justice Crockett’s dissent: It refers to Bracken v. Dahle apparently for the proposition that agreements to arbitrate are against public policy as ousting courts of their jurisdiction. I believe the case cannot be cited for such a general principle. Under the facts there, such result was reached, but the court clearly recognized that such an agreement might be enforceable. The dissent lifts a quotation from Latter v. Holsum Bread for its proposition. The use of these two cases to justify the dissent’s urgence rides awry when it is noted that the Bracken case is not pertinent, and the Latter case deals with arbitration of future disputes, which renders that case also impertinent here. In the instant case there was no arbitration agreement at all, but an agreement, in truth, not to arbitrate, and contrariwise consciously to present the matter to the court in the first instance, and not to evade it. Assuming that the agreement here was one for arbitration, there is nothing wrong with it since there was an existing, — not a future controversy here, which finds plenary sanction for legitimacy, free from the curse of being against public policy, in Title 78-31, Utah Code Annotated 1953, having to do with ARBITRATION of existing controversies, —which is the case here.

Only question here is not one of arbitration, but one of waiver of appeal. The dissent suggests that one may not waive his right to appeal — which cannot be accepted as a sound legal principle. Waiver of appeal is accomplished every day, as is waiver of a jury trial, — both constitutional rights about which the dissent seems earnestly to be concerned. Accused persons frequently waive both such constitutional rights, which parallels those cases where we have said that with respect to points raised on appeal for the first time in civil cases, the appellant has waived his right of review.

CALLISTER, C. J., concurs.

1 . Including the contract and several modifications.

2 . Where Horman was made a third-party defendant, and where claims against Hor-man were dismissed without prejudice.

3 . 16 Utah 2d 223, 398 P.2d 873 (1965).

4 . Bracken v. Dahle, 68 Utah 486, 489, 251 P. 16 (1926); Latter v. Holsum Bread Co., 108 Utah 364, 160 P.2d 421, 428 (1945); Hoste v. Dalton, 137 Mich. 522, 100 N.W. 750, 752 (1904); Brown v. Brown, 35 Ohio App. 182, 172 N.E. 416 (1930); United States Cons. Seeded Raisin Co. v. Chaddock, 173 F. 577 (9th Cir. 1909) cert. denied 215 U.S. 591, 30 S.Ct. 407, 54 L.Ed. 340 (1910); Harmina v. Shay, 101 N.J.Eq. 273, 137 A. 558 (1927); Phelps v. Blome, 150 Neb. 547, 35 N.W.2d 93 (1948).

5 . Lloyds point out that they filed a motion to dismiss in this court and that it was denied, apparently concluding that such denial was tantamount to an adjudication by us that the matter was appeal-able, which conclusion does not necessarily maintain, since frequently such motions are denied for a variety of reasons, not the least of which may be to preserve an issue for plenary treatment by brief and argument.

6 . 15 Utah 2d 422, 394 P.2d 77 (1964).

7 . 123 Utah 16, 253 P.2d 372 (3953).