Marcantel v. Stewart Title Guaranty Company et al
Filing
171
MEMORANDUM DECISION granting in part and denying in part 166 Motion for Entry of Judgment under Rule 54(b). The Trust's Motion to Reconsider therefore is GRANTED. But, the court DENIES the Trust's request for additional fees and expenses relating to the fraud-based claims. Signed by Magistrate Judge Dustin B. Pead on 4/23/2020. (nl)
Case 2:16-cv-00250-DBP Document 171 Filed 04/24/20 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CURT A. MARCANTEL,
Plaintiff,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART MOTION
TO RECONSIDER
v.
Case No. 2:16-cv-250 DBP
MICHAEL AND SONJA SALTMAN
FAMILY TRUST, MICHAEL A. SALTMAN
AND SONJA SALTMAN,
Magistrate Judge Dustin B. Pead
Defendants.
Defendant, Michael and Sonja Saltman Family Trust (the Trust), move the court pursuant
to its “discretion under rule 54(b) of the Federal Rules of Civil Procedure to reopen and revisit a
portion of its Memorandum Decision and Order Granting in Part Motion for Attorneys’ Fees and
Expenses, dated March 24, 2020 (MDO).” (ECF No. 166 p. 1.) In the March 24, 2020, MDO, the
court granted in part Defendants request for attorney fees and expenses. (ECF No. 165.) The
court determined the Trust was not entitled to fees related to Plaintiff’s fraud-based claims, but
was entitled to fees for breach of the real estate purchase contract and breach of the implied
covenant of good faith and fair dealing. The Trust asks the court to reconsider its decision. 1
Federal Rule of Civil Procedure 54(b) provides that “any order or other decision,
however designated, that adjudicates fewer than all the claims … may be revised at any time
before the entry of a judgment adjudicating all the parties’ rights and liabilities.” Fed. R. Civ. P.
54(b). In considering a Rule 54(b) motion, the court may look to the standard used in reviewing a
motion under Rule 59(e). See Ankeney v. Zavaras, 524 F. App’x 454, 458 (10th Cir. 2013).
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The court reviewed the parties’ submissions and upon doing so elects to decide the motion on the basis of the
written memoranda. DUCivR 7-1(f).
Case 2:16-cv-00250-DBP Document 171 Filed 04/24/20 Page 2 of 4
Grounds for seeking reconsideration under Rule 59(e) include “(1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). A motion for reconsideration is appropriate where “the court has misapprehended the
facts, a party’s position, or the controlling law.” Id. A motion for reconsideration, however, is
not appropriate to reargue issues already addressed or bring arguments that could have been
raised in prior briefing. Id.
Here, the Trust seeks reconsideration because Plaintiff asserted all of his claims against
the Trust and confusion was created due to the “confusing way Mr. Marcantel pled them” which
included “confusing naming convention[s].” (ECF No. 166 p. 4.) Thus, the court improperly
distinguished First Am. Title Ins. Co. v. Nw. Title Ins. Agency, 906 F.3d 884 (10th Cir. 2018) on
the mistaken assumption that the Trust only prevailed on the contract claims. The court agrees
that reconsideration is appropriate, but it does not change the court’s decision concerning fees.
As noted in its prior decision, “’Attorney fees are generally recoverable in Utah only
when authorized by statute or contract.’” Reighard v. Yates, 2012 UT 45, ¶ 41, 285 P.3d 1168,
1182 (quoting Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 52, 56 P.3d 524). And, “Fees
provided for by contract, moreover, are allowed only in strict accordance with the terms of the
contract.” Foote v. Clark, 962 P.2d 52, 54 (Utah 1998) (citing Dixie State Bank v. Bracken, 764
P.2d 985, 988 (Utah 1988)). The Real Estate Purchase Contract’s (REPC) section on attorney
fees provides, “In the event of litigation or binding arbitration to enforce the REPC, the
prevailing party shall be entitled to costs and reasonable attorney fees.” (ECF No. 89-4 at ¶17.)
The Trust points to the Tenth Circuit’s decision in First American, 906 F.3d 884, for
support that it is also entitled to fees for prevailing on fraud-based claims under the common core
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rule. In First American, the defendants sought to prevent plaintiffs from receiving fees for a
failure to allocate time between compensable and noncompensable claims. The defendants
argued that the plaintiffs were only partially successful on certain claims and fees for those
should be excluded from the other claims. The Tenth Circuit rejected this argument citing to
Daynight, LLC v. Mobilight, Inc., 248 P.3d 1010, 1013 (Utah Ct.App. 2011). Under Utah law,
the court concluded, “parties need not segregate fees for compensable and noncompensable
claims if the claims ‘sufficiently overlap and involve the same nucleus of facts.’” First Am., 906
F.3d at 900. And there, the court found the plaintiffs’ breach of contract claims sufficiently
overlapped with and involved the same nucleus of facts as the plaintiffs’ other claims. Thus, the
plaintiffs were entitled to fees for all the claims under what the Trust terms is the common core
rule, which should apply here.
Although the court reconsiders its prior decision, the court declines to extend the
common core rule to the facts of this case. First, the facts for establishing fraud are distinct from
those for establishing a breach of contract in this particular case and require more than the usual
investigation before filing a fraud complaint. See Camasta v. Jos. A. Bank Clothiers, Inc., 761
F.3d 732, 737 (7th Cir. 2014). Federal Rule 9(b)’s heightened pleading requirement is illustrative
of this difference. Second, and most importantly, fees are limited by the express terms of the
REPC that the court already interpreted to exclude the fraud based claims. The cases relied on by
the Trust do not have similar contractual provisions. The court finds this case is still more closely
analogous to Reighard v. Yates, 285 P.3d 1168, than those cited to by the Trust. In Reighard, the
court concluded the defendant was entitled to fees for his successful defense of the breach of
contract action, but not for the tort claims, under the terms of that REPC’s section on attorney
fees. The court previously found “there is no statutory or contractual agreement for providing
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Case 2:16-cv-00250-DBP Document 171 Filed 04/24/20 Page 4 of 4
fees on either of the fraud claims” (ECF No. 165 p. 7) and the Trust has failed to convince the
court otherwise. In sum, the facts for establishing fraud and those for breach of contract in this
case are sufficiently distinct and the contractual provision for fees in the RESC narrowly tailored
to forestall the application of the common core rule to this case.
The Trust’s Motion to Reconsider therefore is GRANTED. But, the court DENIES the
Trust’s request for additional fees and expenses relating to the fraud-based claims.
IT IS SO ORDERED.
DATED this 23 April 2020.
Dustin B. Pead
United States Magistrate Judge
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