CWS v. Montgomery

2025 UT App 183

THE UTAH COURT OF APPEALS

CWS, LLC,
Appellant and Cross-appellee,
v.
SCOTT MONTGOMERY,
Appellee and Cross-appellant.

Opinion
No. 20231083-CA
Filed December 11, 2025

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 200903219

Justin T. Toth, Beth J. Ranschau, and Whitney Hulet
Krogue, Attorneys for Appellant and Cross-appellee
Erik A. Olson, Christopher D. Ballard, and Anikka
Hoidal, Attorneys for Appellee and Cross-appellant

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1 During Scott Montgomery’s tenure as manager of CWS,
LLC—a commercial and residential window distributor—he
deferred his compensation and created a competing business.
After his management was called into question, Montgomery was
removed. CWS sued Montgomery, claiming he breached CWS’s
Operating Agreement by participating in the competing business.
Montgomery counterclaimed for his deferred compensation. The
trial court granted partial summary judgment in Montgomery’s
favor on his counterclaim. After a trial on CWS’s claims, the jury
found Montgomery had breached CWS’s Operating Agreement
through the competing business. Both parties were awarded
CWS v. Montgomery

damages and prejudgment interest. And the trial court awarded
CWS attorney fees, concluding it was the prevailing party.

¶2 On appeal, CWS raises several issues with the trial court’s
grant of summary judgment to Montgomery. Montgomery
cross-appeals, arguing CWS was entitled to neither prejudgment
interest on its damages nor attorney fees. We conclude that
summary judgment in Montgomery’s favor was appropriate and
affirm. And we conclude the prejudgment interest award was
appropriate on one portion of CWS’s damages but not the other.
Accordingly, we remand this matter for determination of an
appropriate prejudgment interest award. Finally, we reverse and
remand for the trial court to reassess attorney fees.

BACKGROUND

¶3 Montgomery and David Robison formed CWS in August
2006. CWS’s Operating Agreement, which was signed in March
2007, stated that the purpose of CWS is “to engage in the retail
sales and service of residential and commercial windows, doors,
and other related products as a manufacturer’s dealer and/or
distributor representing multiple manufacturers.” The Operating
Agreement appointed Montgomery as the “initial Manager” of
CWS. In that capacity, section 5.9(a) required Montgomery to
“cause [CWS] to,” among other things, “[p]ay its own liabilities,
indebtedness and obligations out of its own assets as the same
shall become due” and “[p]ay the salaries of its own employees.”
Section 5.1(a) granted Montgomery, as Manager, “the right to take
any and all such actions on behalf of” CWS as he, in his “sole
discretion,” deemed “necessary, desirable or advisable in respect
of the operation of the Company . . . including, without limitation,
any other actions not inconsistent with the character of the
Business (interpreted in the broadest manner).” And under
section 5.2, Montgomery had “the exclusive and complete power,
authority and discretion to manage, control and make all
decisions regarding the Business.” Despite this broad power,

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CWS v. Montgomery

section 5.1(b) required “the approval of Members owning more
than fifty percent (50%) of the total Membership Percentages”
before the Manager could, among other things, change the
company purpose, act “in contravention of” the Operating
Agreement, or change “the terms of employment or
compensation of any Manager or Member.”

¶4 Exhibit B of the Operating Agreement stated that as
Manager, Montgomery would receive a salary of $150,000 per
year and a “bonus equal to one and one half percent (1.5%)” of
gross revenue exceeding $10 million. The terms dictated that the
salary “shall be paid to the Manager through [CWS’s] regular
payroll, with the annual amount divided into equal payments
according to the number of payroll periods.” The bonus was to be
“computed and paid to the Manager each quarter of each fiscal
year,” with the exception of the fourth quarter bonus, which was
to be “re-calculated for the entire fiscal year” and “paid based on
this recalculation.”

¶5 Section 1.10(b) of the Operating Agreement prohibited
members and the Manager from participating in “Competing
Activities,” defined in Article II of the Operating Agreement as
“participation of any kind in the ownership or operation of a
business (other than as operated by [CWS]) in the Territory which
is engaged, directly or indirectly, in whole or in substantial part
in the Company Purposes.” And section 5.6 of the Operating
Agreement provided that CWS’s remedy for a member’s or the
Manager’s engagement in “Competing Activities” was “the right
in, or to, such other ventures or activities and to the income and
proceeds derived from any such violative actions.”

¶6 When Montgomery and Robison formed CWS, they each
owned a 50% membership interest. But in 2012, they each
surrendered 5% of their interest to Lou Swaringen, leaving
Montgomery and Robison with 45% each and Swaringen with a
10% membership interest in CWS.

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CWS v. Montgomery

¶7 Montgomery was Manager of CWS from 2007 to 2019. He
later claimed that beginning in 2007, he made periodic decisions
to “defer” his salary and bonus compensation “so as to increase
the available cash flow of CWS for the benefit of its members, and
otherwise in furtherance of the purposes of the company.” In
2014, however, Montgomery set about doing something much
less beneficial to CWS: he formed Capitol Commercial Glazing
(Capitol), a business that manufactured and installed storefront
windows. CWS apparently treated Capitol as one of the window
manufacturers it contracted with, displaying Capitol’s products
in its showroom. Capitol used CWS assets and employees in its
operations. And Swaringen later stated that he believed Capitol
was part of CWS.

¶8 Robison eventually became concerned about
Montgomery’s management of CWS. And after Robison
discovered Montgomery’s involvement in various other personal
and commercial entities, including Capitol, Robison and
Swaringen removed Montgomery as Manager in 2019. CWS then
made demands for payment from Montgomery on various losses
he had caused the business, which the parties later referred to as
“line-item damages.” 1 Montgomery tendered payment for these
line-item damages, later stating that the tender was made “[i]n
full settlement of the dispute[s]” “but without admitting any
personal responsibility” or “admitting any liability.” CWS
refused to accept this tender, apparently claiming Montgomery
owed more than he was offering.

1. These “line-item damages” included a loan Montgomery
purportedly made from CWS to another entity he controlled
during his time as Manager, payments CWS made on machinery
purchased by another entity Montgomery was involved with,
CWS’s allegedly improper hiring of Montgomery’s family
member, and a dispute over several vehicles.

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CWS v. Montgomery

¶9 CWS filed suit against Montgomery in May 2020, alleging
several claims, including breach of contract for creating Capitol—
a “Competing Activity” as defined in the Operating Agreement.
Montgomery counterclaimed, arguing CWS had breached the
Operating Agreement in failing to pay him about $1.8 million in
“deferred” salary and bonuses after he was removed as Manager
of CWS.

¶10 Montgomery moved for partial summary judgment on
several of CWS’s claims and his breach of contract counterclaim.
CWS opposed Montgomery’s motion, arguing that his “deferred
compensation” was a change to the compensation structure under
the Operating Agreement, which required the approval of
membership interests exceeding 50%. CWS also argued that the
Operating Agreement clearly laid out Montgomery’s duties to
pay himself according to the specified schedule. CWS further
urged that Montgomery’s injury was self-inflicted, he lacked
standing, he failed to mitigate damages, and his damages claim
was “severely limited by the applicable statute of limitations.”

¶11 At the hearing on the motion for partial summary
judgment, Montgomery argued that Capitol was not a
“Competing Activity” and that he was entitled to his earned but
unpaid compensation. Montgomery asserted that he “deferred
because he felt the company’s cash flow required him not to take
this compensation” and he decided “to kick it down the road
when the company could afford it.” Montgomery’s counsel
argued, “[T]he amounts he deferred are completely undisputed.
There’s no dispute there. We’re talking about $1.5 million”—
though Montgomery had initially raised a different figure in his
counterclaim. And noting that CWS had proposed “a slight tweak
of a few dollars” in its calculation of compensation owed to
Montgomery, his counsel then stated Montgomery would “go
along with that.”

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CWS v. Montgomery

¶12 In its order on the motion, the trial court denied summary
judgment to Montgomery on CWS’s claims, concluding that there
were “disputed issues of material facts that prevent[ed] the
granting of summary judgment,” including whether Capitol was
a “Competing Activity.” But the court granted partial summary
judgment in Montgomery’s favor on his counterclaim for unpaid
compensation, stating, “The issue of compensation was not
disputed by [CWS], but on the amount owed,” and, “As
[Montgomery] conceded at the hearing to accept the amount
[CWS] agreed was owed, [Montgomery] is granted judgment
thereon.”

¶13 The case then proceeded to trial on CWS’s claims. Just
before trial, Montgomery again attempted to tender payment to
CWS for some of the line-item damages, offering $249,907. This
time, CWS accepted the tender and dropped its claim for the
line-item damages.

¶14 At trial, the parties stipulated to several facts. As relevant
here, one such fact was that Montgomery had personally
contributed $360,000 to Capitol. Another was that Montgomery
received $667,601—$257,243 in 2017, $343,358 in 2018, and $67,000
in 2019—in distributions from Capitol. The parties further
stipulated that Montgomery earned $1,502,000 for the sale of his
interest in Capitol in April 2019. Based on these stipulated facts,
the parties presented varying theories of damages. CWS’s expert
presented two different damages calculations: “loss theory
number 1,” which was “based off the sales price of [Capitol] and
funds that came out of the company to the . . . listed owners,” and
“loss theory number 2,” which was “based off of future earnings.”
Montgomery’s expert presented a damages theory which
accounted for $667,601 in distributions and $1,502,000 from the
sale of Montgomery’s interest in Capitol and subtracted
Montgomery’s $360,000 in capital contributions to Capitol,
resulting in damages to CWS of $1,809,601.

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CWS v. Montgomery

¶15 As memorialized on a special verdict form, the jury found
that Montgomery “breached Section 1.10(b) of the CWS Operating
Agreement with regard to Capitol.” And the jury found that CWS
suffered damages as a result of Montgomery’s breach in the
amount of $1,809,601, consistent with Montgomery’s theory of
damages.

¶16 Soon after trial, Montgomery and CWS filed competing
motions for their respective attorney fees and costs pursuant to
section 7.3 of the Operating Agreement, which stated, “If [CWS]
or any Member obtains a judgment against a Member or [CWS]
by reason of breach of this Agreement or failure to comply with
the provisions hereof, the prevailing party’s reasonable attorneys’
fees as fixed by the court shall be included in such judgment.” In
a terse ruling unsupported by factual findings, the court
determined that Montgomery “did not prevail and is not entitled
to his attorney fees. [CWS] shall be awarded their fees.”

¶17 In an amended judgment, the court awarded Montgomery
$1,859,080 in damages for his unpaid compensation claim, along
with prejudgment interest at the rate of 10%. The court then
awarded CWS $1,809,601 on its breach of contract claim for
Montgomery’s operation of Capitol, along with prejudgment
interest at the rate of 10% on the following amounts, for a total
judgment of $2,169,601:

$257,243—from December 31, 2017, to entry of
judgment

$343,358—from December 31, 2018, to entry of
judgment

$67,000—from April 1, 2019, to entry of judgment

$1,502,000—from April 1, 2019, to entry of judgment

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CWS v. Montgomery

Recognizing Montgomery’s pre-trial payment of $249,907 for the
line-item damages, the court also awarded CWS 10%
prejudgment interest “from May 8, 2020, the date CWS filed its
action against Montgomery, to October 27, 2023, the date
Montgomery tendered a check for those damages.” Finally, the
court awarded CWS its attorney fees.

¶18 CWS appeals, and Montgomery cross-appeals.

ISSUES AND STANDARDS OF REVIEW

¶19 CWS raises several challenges to the trial court’s grant of
partial summary judgment to Montgomery. “Summary judgment
is proper where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Desert
Mountain Gold LLC v. Amnor Energy Corp., 2017 UT App 218, ¶ 11,
409 P.3d 74. See Utah R. Civ. P. 56(a). “We review a district court’s
grant of summary judgment, as well as the court’s interpretation
of contracts upon which the summary judgment was based, for
correctness,” Desert Mountain, 2017 UT App 218, ¶ 11 (quotation
simplified), viewing “the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party,” iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40,
¶ 30, 424 P.3d 970 (quotation simplified), cert. denied, 425 P.3d 803
(Utah 2018).

¶20 On cross-appeal, Montgomery challenges the trial court’s
award of prejudgment interest to CWS. “A trial court’s decision
to grant or deny prejudgment interest presents a question of law
which we review for correctness.” Diversified Striping Sys. Inc. v.
Kraus, 2022 UT App 91, ¶ 44, 516 P.3d 306 (quotation simplified).

¶21 Montgomery also challenges the trial court’s award of
attorney fees to CWS, arguing the court incorrectly determined
CWS was the prevailing party and did not adequately support its
award with factual findings. “Whether a party is the prevailing

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CWS v. Montgomery

party in an action is a decision left to the sound discretion of the
trial court and reviewed for an abuse of discretion.” Giles v.
Mineral Resources Int’l, Inc., 2014 UT App 37, ¶ 9, 320 P.3d 684
(quotation simplified). “But the related question of whether the
trial court’s findings of fact in support of an award of fees are
sufficient is a question of law that we review for correctness.” Id.
(quotation simplified).

ANALYSIS

I. Summary Judgment

¶22 CWS raises several challenges to the trial court’s grant of
partial summary judgment in Montgomery’s favor. None are
availing.

A. Plain Language of the Operating Agreement

¶23 First, CWS argues that Montgomery was not entitled to
partial summary judgment because the plain language of the
Operating Agreement prohibited him from deferring his
compensation.

¶24 “When we interpret a contract,” such as the Operating
Agreement, “we start with its plain language”—“the ordinary
and usual meaning of the words.” Airstar Corp. v. Keystone
Aviation LLC, 2022 UT App 73, ¶ 53, 514 P.3d 568 (quotation
simplified). “We look for a reading that harmonizes the
provisions and avoids rendering any provision meaningless.”
KeyBank NA v. Systems West Computer Resources, Inc., 2011 UT App
441, ¶ 19, 265 P.3d 107 (quotation simplified), cert. denied, 275 P.3d
1019 (Utah 2012). See UDAK Props. LLC v. Canyon Creek Com.
Center LLC, 2021 UT App 16, ¶ 18, 482 P.3d 841 (“An interpretation
which gives effect to all provisions of the contract is preferred to
one which renders part of the writing superfluous, useless, or
inexplicable.”) (quoting 11 Williston on Contracts § 32:5 (4th ed.

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CWS v. Montgomery

2020)), cert. denied, 509 P.3d 768 (Utah 2022). “If the language
within the four corners of the contract is unambiguous, the
parties’ intentions are determined from the plain meaning of the
contractual language, and the contract may be interpreted as a
matter of law.” Airstar Corp., 2022 UT App 73, ¶ 53 (quotation
simplified).

¶25 Here, both parties assert that the Operating Agreement is
unambiguous and should be construed in accordance with its
plain language. But they take different views about what that
plain language means.

¶26 CWS points to section 5.9(a) of the Operating Agreement,
which required Montgomery, as Manager, to “cause [CWS] to,”
among other things, “[p]ay its own liabilities, indebtedness and
obligations out of its own assets as the same shall become due,”
“[p]ay the salaries of its own employees,” and “[m]aximize the
Available Cash Flow of” CWS. CWS also stresses the fact that
Exhibit B to the Operating Agreement stated that the “salary of
$150,000 per year shall be paid to the Manager through [CWS’s]
regular payroll” and the bonus “shall be computed and paid to
the Manager each quarter of each fiscal year,” with the exception
of the fourth quarter bonus, which was to be “re-calculated for the
entire fiscal year” and “paid based on this recalculation.” CWS
further notes that the Operating Agreement permitted a change
to “the terms of employment or compensation of any Manager or
Member” only upon “approval of Members owning more than
fifty percent (50%) of the total Membership Percentages.” CWS
urges that Montgomery’s deferral of his salary and bonuses was
a change to the compensation structure that he could not
unilaterally make with his 45% membership interest.

¶27 Montgomery, on the other hand, contends that nothing in
the Operating Agreement prevented him from deferring his
salary and bonuses or indicated that he would forfeit this
compensation if he did so. Rather, he argues that under section

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CWS v. Montgomery

5.1(a) of the Operating Agreement, he had “sole discretion” to
“take any and all such actions on behalf of” CWS as he “deem[ed]
necessary, desirable or advisable,” and that under section 5.2, he
had “the exclusive and complete power, authority and discretion
to manage, control and make all decisions regarding the
Business.” Montgomery also notes that section 5.9(a) required
him, as Manager to, among other things, “[m]aximize the
Available Cash Flow of” CWS, and he argues that under Article
II’s definition of “Available Cash Flow,” this included setting
aside “such reasonable reserves as may be established by the
Manager for accrued and future Expenses.” Montgomery further
argues that deferring his compensation was not “changing the
terms of . . . compensation” requiring approval of majority
members because only the timing of payment was affected by his
decision, not the amount of the salary and bonus payments to
which he was entitled.

¶28 We agree with Montgomery that while the terms of Exhibit
B entitled him to an annual salary and quarterly bonuses, the
other terms of the Operating Agreement did not prevent him from
deferring payment of this compensation. In fact, the Operating
Agreement granted Montgomery, as Manager, broad discretion.
And in context, the terms in Exhibit B were included for
Montgomery’s benefit. We agree that Montgomery’s deferral of
amounts due to him was within the scope of his discretion.
Concluding otherwise would result in Montgomery—who CWS
admits consistently increased the revenue of the company—
forfeiting years’ worth of compensation. “We will not interpret
the contract to yield such inequitable results.” Green River Canal
Co. v. Thayn, 2003 UT 50, ¶ 33, 84 P.3d 1134. See id. ¶ 24 (“Where
there is doubt about the interpretation of a contract, a fair and
equitable result will be preferred over a harsh and unreasonable
one. And an interpretation that will produce an inequitable result
will be adopted only where the contract expressly and
unequivocally so provides that there is no other reasonable
interpretation to be given it.”) (quotation simplified).

20231083-CA 11 2025 UT App 183
CWS v. Montgomery

¶29 Employing a properly harmonized reading of the
Operating Agreement, we conclude that its plain language did not
prevent Montgomery from deferring his compensation, even
though he would have been entitled to take every penny he was
due in the timeframe outlined in Exhibit B had he so elected.

B. Disputed Facts Regarding Damages

¶30 Next, CWS argues that the trial court ignored its arguments
regarding Montgomery’s entitlement to his deferred
compensation. In granting partial summary judgment to
Montgomery, the court concluded, “The issue of compensation
was not disputed by [CWS], but on the amount owed. As
[Montgomery] conceded at the hearing to accept the amount
[CWS] agreed was owed, [Montgomery] is granted judgment
thereon.” On appeal, CWS argues that, contrary to the court’s
conclusion, it contested both the availability and amount of
Montgomery’s unpaid compensation and, in doing so, created a
genuine dispute of material fact precluding summary judgment.

¶31 Montgomery asserted several different figures for his
unpaid compensation and bonuses in his counterclaim and in
arguing his motion for summary judgment. CWS contested these
amounts. But during argument on the motion, Montgomery’s
counsel stated, “His compensation—the amounts he deferred are
completely undisputed. There’s no dispute there. We’re talking
about $1.5 million,” though Montgomery had not previously
raised this exact amount. And recognizing that there was “a slight
tweak of a few dollars” in CWS’s calculation of what Montgomery
was owed, Montgomery’s counsel then stated Montgomery
would “go along with that.” Given this apparent agreement, we
cannot say that the trial court erred in concluding there was no
genuine dispute regarding damages.

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CWS v. Montgomery

C. Montgomery’s Substantial Performance

¶32 Finally, CWS argues that to prevail on his counterclaim via
summary judgment, Montgomery was required to show his
substantial performance under the Operating Agreement. CWS
argues that Montgomery could not do so and that the trial court
could not conclude he had substantially performed, where the
court also determined that material issues of fact remained
regarding whether Montgomery otherwise breached the
Operating Agreement through his involvement with Capitol.
Montgomery sees this argument as unpreserved, and so do we.

¶33 “If a party fails to raise an issue at the appropriate time, the
party risks losing the opportunity to have the court address that
issue.” Lavender v. FCOI Preserve, LLC, 2025 UT App 47, ¶ 46, 569
P.3d 1037 (quotation simplified), cert. denied, 570 P.3d 660 (Utah
2025). “An issue is properly preserved when it has been presented
to the district court in such a way that the court had an
opportunity to rule on it”—i.e., the issue was “specifically raised
by the party asserting error, in a timely manner, and . . . supported
by evidence and relevant legal authority.” Id. (quotation
simplified). Before the trial court, CWS advanced several
arguments as to why Montgomery could not prevail on his
counterclaim, but his failure to prove his substantial performance
was not among them. CWS neither specifically mentioned the
doctrine of substantial performance nor cited any authority on
that point. Thus, we cannot say that the issue was presented to the
trial court at all. Accordingly, we do not address it further. See
Winn v. McKinlay, 2025 UT App 16, ¶ 39, 565 P.3d 101 (“When it
is clear that an appellant is raising an entirely new legal theory on

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CWS v. Montgomery

appeal, we may simply apply the preservation rule and decline to
address the newly raised issue.”). 2

¶34 In sum, the plain language of the Operating Agreement did
not prevent Montgomery from deferring his compensation, there
was no dispute of fact regarding his entitlement to unpaid
compensation, and CWS has not preserved its argument
regarding his substantial performance. We thus affirm the trial
court’s grant of partial summary judgment in Montgomery’s
favor. 3

2. Montgomery’s breach of the Operating Agreement based on his
involvement with Capitol, which CWS argues on appeal
precluded him from showing substantial performance, was dealt
with at trial, the result being an award of damages to CWS
pursuant to a provision of the Operating Agreement that laid out
the remedy for engaging in a “Competing Activity.”

3. CWS argues that if we determine summary judgment was
appropriate, the amount of unpaid compensation Montgomery
received should be reduced because Montgomery’s calculation
contained mathematical errors, Montgomery’s counsel stipulated
to a lower amount at argument on his motion for summary
judgment, and the statute of limitations operates to preclude some
of his claimed compensation. We are not persuaded. The need for
a more precise calculation in Montgomery’s motion—including
any mathematical errors therein—was obviated by the parties’
later agreement as to the amount due Montgomery. See supra ¶ 31.
Nor does the statute of limitations reduce these damages. The
applicable “statute of limitations for an action upon any contract
is six years,” which “ordinarily begins to run when the breach
occurs.” Hunter v. Finau, 2024 UT App 17, ¶ 18, 545 P.3d 294
(quotation simplified), cert. denied, 550 P.3d 993 (Utah 2024). Here,
the breach occurred when CWS removed Montgomery as
(continued…)

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CWS v. Montgomery

II. Prejudgment Interest

¶35 “The purpose of awarding prejudgment interest is to
compensate a party for the depreciating value of the amount
owed over time and, as a corollary, to deter parties from
intentionally withholding an amount that is liquidated and
owing.” Diversified Striping Sys. Inc. v. Kraus, 2022 UT App 91,
¶ 77, 516 P.3d 306 (quotation simplified). “In Utah, prejudgment
interest is recoverable where the damage is complete, the amount
of the loss is fixed as of a particular time, and the loss is
measurable by facts and figures.” Id. (quotation simplified). “This
standard focuses on the measurability and calculability of the
damages” and requires “the amount of the loss to be calculated
with mathematical accuracy in accordance with well-established
rules of damages.” Id. (quotation simplified). Thus,

courts will not award prejudgment interest in cases
where the trier of fact has to use its best judgment in
assessing the amount to be allowed for past as well
as for future injury, such as personal injury cases,
cases of death by wrongful act, libel, slander, false
imprisonment and all cases where the damages are
incomplete and are peculiarly within the province
of the jury to assess at the time of trial.

Lavender v. FCOI Preserve, LLC, 2025 UT App 47, ¶ 112, 569 P.3d
1037 (quotation simplified), cert. denied, 570 P.3d 660 (Utah 2025).
In other words, “prejudgment interest is inappropriate in cases
where the trier of fact is left to assess damages based on a mere
description of the wrongs done or injuries inflicted.” Encon Utah,

Manager in June 2019 and refused to pay him his deferred
compensation. Montgomery filed his counterclaim in June 2020—
well within the statutory period. Thus, we conclude that the
amount of Montgomery’s compensation should not be reduced.

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CWS v. Montgomery

LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 53, 210 P.3d 263
(quotation simplified).

¶36 Here, the trial court awarded prejudgment interest to CWS
on its Capitol-related damages “at the rate of 10% per annum” on
the following figures:

$257,243—from December 31, 2017, to entry of
judgment

$343,358—from December 31, 2018, to entry of
judgment

$67,000—from April 1, 2019, to entry of judgment

$1,502,000—from April 1, 2019, to entry of judgment

And the court awarded 10% prejudgment interest on the line-item
damages from “the date CWS filed its action against
Montgomery” to “the date Montgomery tendered a check for
those damages.”

¶37 Montgomery argues the court erred in awarding
prejudgment interest on either category of damages. For reasons
hereafter explained, we partially agree and partially disagree with
Montgomery, remanding the issue of prejudgment interest on the
Capitol damages and reversing the award on the line-item
damages.

A. Capitol-Related Damages

¶38 Montgomery argues that the trial court erred in granting
prejudgment interest on the Capitol-related damages because
CWS’s damages were not fixed as of a particular time and were
not subject to mathematical calculation. He further contends that
the interest was not based on the damages figure actually
awarded by the jury, “ignor[ing] the compensatory purpose of

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CWS v. Montgomery

prejudgment interest and mak[ing] the award punitive and an
unjust windfall to CWS.”

¶39 First, we conclude that prejudgment interest was
appropriate on the Capitol-related damages. Under section 5.6 of
the Operating Agreement, the remedy for any “Competing
Activity” was CWS’s “right in, or to, such other ventures or
activities and to the income and proceeds derived from any such
violative actions.” The parties stipulated to the distributions and
earnings Montgomery received from Capitol as well as to the
years in which he received these distributions and earnings. While
the jury was presented with various theories of damages
calculations at trial, the figures those calculations were based on
were static. See Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009
UT 7, ¶ 55, 210 P.3d 263 (“Where damage figures are subject to
calculation, . . . even if the method of calculating is uncertain, or
the damage figures change, prejudgment interest is
appropriate.”). See also id. ¶ 64 (“A dispute, even between experts,
as to the precise amount of damages does not necessarily preclude
those damages from being measurable or calculable.”). The jury
was not left to “assess damages based on a mere description of”
CWS’s losses. Id. ¶ 53 (quotation simplified). Thus, the Capitol
damages were measurable, calculable, and fixed as of a particular
time, and as such, they were subject to prejudgment interest.

¶40 But while prejudgment interest was warranted on these
Capitol damages, the trial court based the interest on an incorrect
figure. The jury awarded CWS $1,809,601 for Montgomery’s
competing activities related to Capitol. The jury reached this
figure based on Montgomery’s expert’s theory of damages, which
used the aggregated amounts stipulated to: $667,601 in
distributions Montgomery received over the course of three years
and $1,502,000 in proceeds from the sale of his interest in Capitol,
less his $360,000 in capital contributions to Capitol. But the trial
court awarded prejudgment interest on the Capitol damages
based solely on Montgomery’s distributions and earnings,

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CWS v. Montgomery

totaling $2,169,601. Prejudgment interest must be based on the
actual damages award, as its whole purpose is to compensate for
the “depreciating value” of those damages. See Diversified Striping
Sys. Inc. v. Kraus, 2022 UT App 91, ¶ 77, 516 P.3d 306 (quotation
simplified). We thus remand for the trial court to amend its
judgment to reflect prejudgment interest on the Capitol damages
figure awarded by the jury.

B. Line-Item Damages

¶41 Montgomery also challenges the trial court’s prejudgment
interest award on the line-item damages. Here, we agree with
Montgomery that prejudgment interest was unwarranted.

¶42 Prior to litigation, in August 2019, Montgomery tendered
payment for many of the damages CWS later claimed in its
complaint. CWS refused this initial tender and filed its complaint
in May 2020. In October 2023, Montgomery tendered payment of
$249,907 on some of these damages. This time, CWS accepted the
tender and agreed to drop this aspect of its claim. The court later
awarded prejudgment interest on the $249,907 line-item damages
for the period between May 8, 2020, when CWS filed its
complaint, to October 27, 2023, when Montgomery tendered
payment.

¶43 Montgomery claims that CWS’s refusal of his initial tender
precluded its entitlement to prejudgment interest, as he did not
withhold these damages. He argues that CWS cannot have the
benefit of prejudgment interest on these damages after refusing
the tender prior to May 2020. On the other hand, CWS contends
that Montgomery’s initial tender was invalid and, thus, does not
prevent prejudgment interest. CWS points to language in
Montgomery’s answer to CWS’s complaint in which he referred
to this initial tender and stated that he had made it “without
admitting any personal responsibility” or “without admitting any
liability.” Thus, CWS reasons, Montgomery conditioned this
tender on “full settlement of the dispute.”

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CWS v. Montgomery

¶44 “A tender, to be good, must be free from any condition
which the tenderer does not have a right to insist upon.” New York
Avenue LLC v. Harrison, 2016 UT App 240, ¶ 40, 391 P.3d 268
(quotation simplified), cert. denied, 393 P.3d 283 (Utah 2017). But
we do not read the language in Montgomery’s answer as creating
an impermissible condition.

¶45 Ultimately, “the purpose of awarding prejudgment
interest is to compensate for the full loss suffered by the plaintiff
in losing the use of the money over time,” and it “represents an
amount awarded as damages due to the opposing party’s delay
in tendering the amount owing under an obligation.” Kraatz v.
Heritage Imports, 2003 UT App 201, ¶ 75, 71 P.3d 188 (quotation
simplified), cert. denied, 84 P.3d 239 (Utah 2003). Montgomery did
not delay tendering the amount CWS claimed he owed for the
line-item damages. In his answer, Montgomery stated that he had
asked CWS for further clarification on what he owed for these
various line-item damages but CWS did not provide details. CWS
later accepted $249,907 for these line-item damages—much less
than the $1 million it claimed in its trial exhibit. The delay here
was caused by CWS’s refusal to accept Montgomery’s initial
tender, not Montgomery’s delay in making the tender. Awarding
prejudgment interest under these circumstances would be
inconsistent with the purpose of such an award. Cf. Tschaggeny v.
Milbank Ins. Co., 2007 UT 37, ¶ 28, 163 P.3d 615 (concluding as a
matter of statutory interpretation that “it is absurd to require a
defendant to pay interest on money that has already been
remitted to the plaintiff” and that doing so “would blatantly
controvert the express purpose” of a statute providing for
prejudgment interest, “which is to encourage the prompt
payment of amounts not in dispute”).

¶46 Thus, while we conclude prejudgment interest was
appropriate on the Capitol-related damages, the same cannot be
said for the line-item damages. Because the prejudgment interest
on the Capitol damages was based on an incorrect damages

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CWS v. Montgomery

figure, we remand this portion of the judgment to the trial court
for correction. And we reverse the court’s award of prejudgment
interest on the line-item damages.

III. Attorney Fees

¶47 Montgomery also challenges the trial court’s award of
attorney fees to CWS. In particular, he takes issue with the court’s
determination that CWS was the prevailing party, pointing to the
court’s fee ruling itself, which he asserts “provided no insight into
how it concluded that CWS prevailed.” We are persuaded by this
point.

¶48 “In Utah, attorney fees are awarded only if authorized by
statute or contract. If provided for by contract, attorney fees are
awarded in accordance with the terms of the contract.” Capozzoli
v. Madden, 2024 UT App 176, ¶ 48, 561 P.3d 727 (quotation
simplified). Here, section 7.3 of the Operating Agreement stated,
“If [CWS] or any Member obtains a judgment against a Member
or [CWS] by reason of breach of this Agreement or failure to
comply with the provisions hereof, the prevailing party’s
reasonable attorneys’ fees as fixed by the court shall be included
in such judgment.” In situations such as these, “where the parties
fail to define ‘prevailing party,’” the court is “afforded discretion
regarding prevailing party determinations.” Young H2ORE LLC v.
J&M Transmission LLC, 2024 UT App 10, ¶ 26, 543 P.3d 1264
(quotation simplified). As this “is often an imprecise process,”
Utah courts follow “a flexible and reasoned approach for
determining which party has emerged the comparative winner.”
Olsen v. Lund, 2010 UT App 353, ¶ 7, 246 P.3d 521 (quotation
simplified). This approach requires trial courts to consider various
factors, including “(1) the language of the attorney fee provision,
(2) the number of claims brought by the parties, (3) the importance
of each claim relative to the others and their significance
considering the lawsuit as a whole, and (4) the amounts awarded

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CWS v. Montgomery

on the various claims.” Wihongi v. Catania SFH LLC, 2020 UT App
109, ¶ 9, 472 P.3d 308 (quotation simplified).

¶49 Ultimately, “although a trial court has discretion to
determine an award of attorney fees, the exercise of that discretion
must be based on an evaluation of the evidence.” Foote v. Clark,
962 P.2d 52, 57 (Utah 1998) (quotation simplified). “Utah appellate
courts have consistently encouraged trial courts to make findings
to explain the factors which they considered relevant in arriving
at an attorney fee award.” Selvage v. J.J. Johnson & Assocs., 910 P.2d
1252, 1265 (Utah Ct. App. 1996) (quotation simplified). See Monaco
Apartment Homes v. Figueroa, 2021 UT App 50, ¶ 6, 489 P.3d 1132
(“An award of attorney fees must generally be made on the basis
of findings of fact supported by the evidence and appropriate
conclusions of law[.]”) (quotation simplified). These findings
“should detail the factors considered dispositive by the trial court
in calculating the award” to “enable the reviewing court to make
an independent review of the fee award.” Foote, 962 P.2d at 55.
Documenting these factors is especially important where “the
evidence submitted to support the fee request is controverted or
inconsistent.” Id. at 57. “Where the inadequacy of the trial court’s
findings of fact and conclusions of law results in our inability to
ascertain the basis of the trial court’s decision, we are prevented
from effectively reviewing the trial court’s decision and may
remand for the entry of more-detailed findings.” Monaco, 2021 UT
App 50, ¶ 6 (quotation simplified).

¶50 Here, the trial court issued a very terse ruling, stating only,
“The Court determines [Montgomery] did not prevail and is not
entitled to his attorney fees. [CWS] shall be awarded their fees.”
As CWS acknowledges, this did not disclose the court’s findings
or conclusions. Nor can we imply such findings. See Foote, 962
P.2d at 56 (noting that while appellate courts “may uphold a fee
award when no findings of fact have been entered on the record
when it would be reasonable to assume that such findings actually
had been made,” this was not such a case, as the “trial court did

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CWS v. Montgomery

not enter any findings of fact setting forth the steps of its
evaluation or supporting its fee award”). See also Miller v.
Martineau & Co., 1999 UT App 216, ¶ 47, 983 P.2d 1107 (“[C]ases
remanding conclusory attorney fee awards for the entry of
adequate findings are legion, while one looks in vain for a single
case in which either Utah appellate court has implied the findings
necessary to sustain an award of attorney fees not supported by
adequate express findings.”) (citations omitted).

¶51 Consequently, we are unable to meaningfully review the
fee award here, including the court’s determination that CWS was
the prevailing party, and we reverse and remand for the trial court
to reconsider attorney fees. However, as the issue will arise on
remand, we discuss some further aspects of the prevailing party
determination that may prove useful. See Young H2ORE LLC, 2024
UT App 10, ¶ 48.

¶52 Again, “the question of which party prevailed depends, to
a large measure, on the context of each case, and, therefore, it is
appropriate to leave this determination to the sound discretion of
the trial court.” Wihongi, 2020 UT App 109, ¶ 8 (quotation
simplified). “We recognize that, in many instances,” in following
the flexible and reasoned approach outlined above, trial “courts
will by necessity conclude that only one party prevailed in the
litigation.” Young H2ORE LLC, 2024 UT App 10, ¶ 49. “But courts
are to engage in a case-by-case evaluation and they have the
flexibility to handle circumstances where both, or neither, parties
may be considered to have prevailed.” Id. (emphasis in original;
quotation otherwise simplified). While we do not dictate which
factors the court should consider, we note that “[t]he court cannot
properly evaluate a claim for fees without measuring the request
against at least some established touchstones.” Foote, 962 P.2d at
57. One such touchstone is the net judgment rule. Our Supreme
Court has “cautioned against considering only the net judgment
in the case” and has “stressed the importance of looking at the
amounts actually sought and then balancing them proportionally

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CWS v. Montgomery

with what was recovered.” Wihongi, 2020 UT App 109, ¶ 9
(quotation simplified). But here, where the parties received
similar judgment amounts, the net judgment may provide a
useful starting place for the court in reassessing fees. See Olsen,
2010 UT App 353, ¶ 7 (“The net judgment rule will usually be at
least a good starting point, but it should not be mechanically
applied.”) (quotation simplified).

¶53 “A trial court may . . . select, according to the factually
varied context of each particular case, the factors that are most
relevant to its fee calculation—but select them it must.” Foote, 962
P.2d at 56–57. And it must explain them, too. Thus, we remand
the issue of attorney fees to the trial court—not to allow the court
to retroactively justify its original fee award but, instead, to
provide it the opportunity to consider attorney fees anew,
detailing the factors it considers in doing so. 4

4. Montgomery seeks an award of attorney fees incurred on
appeal. “As a general matter, when a party who received attorney
fees below prevails on appeal, the party is also entitled to fees
reasonably incurred on appeal.” Globe Contracting LLC v. Hour,
2025 UT App 98, ¶ 89 n.14, 575 P.3d 235 (quotation simplified).
But because we remand for the trial court to consider attorney fees
anew, we do not yet know who the prevailing party is below, and
we cannot now award appellate attorney fees on this basis. We
therefore also leave that determination to the trial court on
remand. See Williamson v. Farrell, 2024 UT App 111, ¶ 46 n.14, 557
P.3d 214 (“Because we remand the issue of attorney fees for the
trial court to consider anew, [the appellees’] entitlement to
attorney fees at the trial court level is yet to be determined. Thus,
any appropriate award of attorney fees on appeal is dependent
upon that determination and should be assessed by the district
court on remand.”) (quotation simplified).

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CWS v. Montgomery

CONCLUSION

¶54 The Operating Agreement did not prevent Montgomery
from deferring his compensation, there was no dispute as to the
unpaid compensation owed him, and CWS did not preserve its
argument regarding Montgomery’s substantial performance.
Thus, we conclude partial summary judgment in Montgomery’s
favor was appropriate. And while prejudgment interest was
warranted on CWS’s Capitol-related damages, the same is not
true for the prejudgment interest awarded on the line-item
damages. Lastly, we conclude that in the absence of adequate
findings, the trial court’s attorney fee award cannot stand.
Accordingly, we reverse the prejudgment interest award on the
line-item damages and remand the prejudgment interest award
on the Capitol damages for the trial court to bring it in line with
the damages awarded by the jury. And we reverse the attorney
fee award and remand for the court to resolve that issue anew.

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