Glew v. Ohio Savings

2008 UT 17
IN THE SUPREME COURT OF THE STATE OF UTAH
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Jordan Glew, Maureen Glew, James 	No. 20051092
R. Nichol, and Joan P. Nichol,
Plaintiffs, Counterclaim
Defendants, and Appellees,
Superior Title Company of Utah,
Additional Counterclaim
Defendant,
v.
Ohio Savings Bank,
Defendant, Counterclaimant,
Third-Party Plaintiff, and
Appellant,
v.
F I L E D
Metro National Title Company,
Third-Party Defendant. 	February 22, 2008
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Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 000902663
Attorneys: 	Richard A. Rappaport, Leslie Van Frank, Thomas J.
Burns, Salt Lake City, for plaintiffs
George A. Hunt, Salt Lake City, for defendant
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ORDER GRANTING ATTORNEY FEES ON APPEAL
Appellees Jordan Glew, Maureen Glew, James R. Nichol, and
Joan P. Nichol petitioned this court for rehearing of the appeal
which resulted in the issuance of our decision in Glew v. Ohio
Savings Bank, 2007 UT 56, 181 P.3d 791, on July 17, 2007. 	The
appellees sought rehearing for the purpose of seeking an award of
their attorney fees on appeal. 	Following the receipt of the
appellees’ petition, we called for a response from the appellant,
Ohio Savings Bank, and sought supplemental briefing on the
question presented in the appellees’ petition.

No. 20051092 	2
Although we conclude that an application for an award of
attorney fees on appeal should be presented to this court by
motion brought under rule 23 of the Utah Rules of Appellate
Procedure instead of through a petition for rehearing, we concede
that our rules do not give clear direction on this subject. 	The
appellees have understandably construed our failure to address
their request for fees on appeal in our opinion to be a matter of
“overlooking” or “misapprehending” the issue. 	The availability
of fees on appeal is, however, an issue that is in almost all
instances ancillary to the issues to which the parties have
devoted their energies and precious brief pages. 	The issue is
never an issue on appeal that can be expected to appear in a
docketing statement under the requirements of rule 9(c)(7) of the
Utah Rules of Appellate Procedure. 	We therefore elect to treat
the appellees’ petition for rehearing as a motion to award
attorney fees on appeal.
By using the petition for rehearing to seek their fees, the
appellees have unwittingly invited Ohio Savings to seek rehearing
of the trial court’s award of attorney fees, an issue it never
challenged before. 	We summarily reject Ohio Savings’ request
that we take up the unpreserved issue of whether the trial court
properly awarded the appellees their attorney fees on the basis
of a claim that “exceptional circumstances” warrant review. 	Not
only did Ohio Savings fail to take up the issue of attorney fees
in any papers filed with the court before we issued our decision,
it did not take note of the matter until we invited it to respond
to the appellees’ petition for rehearing.
We also reject Ohio Savings’s contention that the appellees
are ineligible for an award of fees on appeal because our
decision affirmed the appellees’ victory on its claim of
equitable estoppel but declined to reach other grounds.
According to Ohio Savings, an equitable resolution cannot support
a fee award. 	This claim lacks merit. 	The trial court determined
that Ohio Savings was equitably estopped from asserting that the
appellees, specifically Mr. and Mrs. Nichol, breached their
contract. 	As we have recently noted, equitable estoppel may be
used to justify “modify[ing] a contract or prevent[ing] a party
from denying the validity of contract when one party has relied
on another party’s conduct.” 	Swan Creek Vill. Homeowners Ass’n
v. Warne, 2006 UT 22, ¶ 35, 134 P.3d 1122. 	The equitable relief
awarded the appellees was not a substitute for relief under a
contract, but rather provided the rationale for awarding relief
based squarely on a contract.
Therefore, consistent with our settled view that a party who
received an award of attorney fees below is entitled to their
fees on appeal, we grant the appellees’ application for fees and

3 	No. 20051092
remand for determination of the reasonable amount of attorney
fees to be awarded.
Dated this 22 day of February, 2008.
BY THE COURT
Ronald E. Nehring
Justice