Austin v. Bingham

2014 UT App 15
_________________________________________________________
THE UTAH COURT OF APPEALS
MICHAEL AUSTIN AND WANDA AUSTIN,
Plaintiffs and Appellants,
v.
JON BINGHAM AND ADREE BINGHAM,
Defendants and Appellees.
Memorandum Decision
No. 20120765-CA
Filed January 24, 2014
Eighth District Court, Duchesne Department
The Honorable Lyle R. Anderson
No. 090800117
Paul H. Tsosie, Attorney for Appellants
Gayle F. McKeachnie, Michael D. Zimmerman, Troy L. Booher,
and Clemens A. Landau, Attorneys for Appellees
JUDGE STEPHEN L. ROTH authored this Memorandum Decision,
in which JUDGE JAMES Z. DAVIS and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
ROTH, Judge:
¶1 Michael and Wanda Austin appeal from certain portions
of a damages award in favor of Jon and Adree Bingham. We
affirm and remand to the trial court for calculation of the
attorney fees that the Binghams incurred on appeal.
¶2 The Austins and the Binghams are neighbors in rural
Neola, Utah. The Binghams have a private right-of-way to access
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).

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their residence over the Austins’ property. That right-of-way has
existed for over thirty years, and during much of that time, it
was the only access to the Bingham parcel.2 The right-of-way
runs from the county road past the Austins’ home and then
through the Austins’ and another neighbor’s pasture to the
Bingham parcel. Previous owners built a rudimentary road over
the right-of-way, using culverts and gravel to make it passable,
but the road is by all other appearances pasture land. In the
spring of 2007, Jon Bingham built a fence along the south side of
the right-of-way to allow the Austins to graze cattle without “the
need to open and close gates as people accessed the Bingham
property.” The Binghams also plowed the right-of-way to keep it
accessible during the winters of 2007 and 2008. Until late 2008,
the Binghams’ use of the right-of-way was uneventful, except for
a few occasions when Mr. Austin stopped Mr. Bingham to
complain that people were speeding on the right-of-way.
¶3 In January 2009, things changed dramatically. The
Austins started interfering with the Binghams’ use of the right-
of-way by closing the barbed wire gates. There were three gates
along the right-of-way: one at the county road, one at the
beginning of the pasture near the Austins’ home, and one at the
end of the Austins’ pasture. To open these gates, a person using
the right-of-way would have to exit his or her vehicle and
unloop the barbed wire from a fence post. On the first day that
the Austins closed the gates, Mrs. Austin called the Binghams,
“quite upset” and “yelling” that the Austins had “warned [the
Binghams] that [they] were going to close [the+ gates” if the
speeding on the right-of-way road continued. When Mr.
Bingham explained to Mrs. Austin that closing the gates was
2. The Austin and Bingham parcels were originally one parcel,
but in 1975, the title was split and the right-of-way was created.
The Austins have resided on their parcel since 1985. The
Binghams moved into the home on their parcel in 2007. Prior to
the Binghams’ ownership, no one had resided on the Bingham
parcel for more than sixteen years.

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unacceptable because Mrs. Bingham and many of the Binghams’
guests would be unable to open the gates, Mrs. Austin said,
“Well, that’s not my problem” and hung up the phone. The
Austins soon began routinely closing the gates after each person
drove down the right-of-way and insisted that the Binghams and
their guests do the same. The Austins’ demands were often
accompanied by shouted profanities. The Binghams declined to
close the gates, however, and the dispute soon escalated.
¶4 Whenever the Binghams traveled the right-of-way, the
Austins would follow “right on *their+ bumper . . . shutting the
gates.” If Mrs. Bingham arrived at the gate while the Austins
were in the process of closing it, she would have to wait until
they closed the gate and then exit her vehicle to reopen it. The
Austins also began tightening the barbed wire strands, making
the gates increasingly more difficult to open because opening
each gate required pulling the gate post against the tension of
the barbed-wire gate strands in order to disengage the top of the
gate post from the wire loop that secured it to the adjacent fence
post. The difficulty was further complicated by the gates’
placement over metal cattle guards, which required “stand*ing+
on slippery bars” while unlooping the wire gate from the fence
post. Mrs. Bingham and female guests often scraped their hands
and tore their clothing while struggling with the fence. Once,
when Mrs. Bingham was unable to open the middle gate, Mr.
Austin locked the first gate behind her and left, stranding her in
the pasture. On another occasion, the Austins used baling twine
to knot a gate shut, and Mr. Bingham had to cut the twine in
order to get the gate open. Later, the Austins installed panels
that latched to the wire gates and used bicycle combination locks
to secure them. Those locks were difficult to open in the dark
and often froze in the winter.
¶5 In March 2009, a visiting friend and her children were
trying to get to the Bingham property when Mr. Austin came out
of the house and physically blocked the friend from opening the
gate. Mrs. Bingham, accompanied by her two young children,
went down to intervene. By the time she arrived, Mrs.
Bingham’s friend and her children were crying. Mr. Austin

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“started yelling” at Mrs. Bingham and said “he was not going to
let *the friend+ through” because she was not “us*ing] this right-
of-way correctly.” Mr. Austin continued yelling and was
“obviously very, very angry,” so Mrs. Bingham called the police.
¶6 Angry confrontations became more and more frequent. A
neighbor testified that he and his wife were traveling the right-
of-way after picking up their children from the Bingham house
when Mrs. Austin “came to the window yelling profanity.” The
neighbor later returned to the Austins’ house to talk with them
about their behavior, and Mr. Austin chased him off the porch,
threatening to beat him. At that point, the neighbor testified, Mr.
Austin told him that the Austins’ actions were intended to “get
under [the Binghams’+ skin” and that Mr. Austin “would get
Johnny *Bingham+” by “hid*ing+ behind the tree . . . and . . .
knock*ing+ him.” Another neighbor reported that on a cold, wet
spring day, he struggled with the combination lock for four or
five minutes before simply removing a gate post to open one of
the gates. The neighbor testified that Mr. Austin approached him
“irate, . . . yelling at me, cursing, asking me what I was doing to
his gate.” When the neighbor retreated to his vehicle, Mr. Austin
pressed “his face right [into the] passenger truck window,”
yelling profanities at him until the neighbor drove away. Mrs.
Bingham testified that the Austins would often confront the
Binghams as well while they opened the gates. On at least one
occasion, Mrs. Austin informed Mrs. Bingham that the Binghams
could only blame themselves for the behavior because “you kids
are the one[s] that started it.”
¶7 During this same time period, the Austins also prohibited
the Binghams from maintaining the right-of-way. On one
occasion, Mrs. Austin stood in the middle of the road and
refused to move until the plowing ceased. She ordered the
Binghams to “not plow this road again.” On another occasion,
Mr. Bingham was filling in some of the deeper ruts in the road
when Mr. Austin came out yelling that Mr. Bingham had “no
right” to repair the road and demanding that Mr. Bingham leave
before “I tear this whole thing up.”

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¶8 Mrs. Bingham testified that she thought that Mrs. Austin
“hasn’t liked us there” because “the road *has been+ used on a
regular basis” since the Binghams moved onto the parcel. Mrs.
Bingham further testified that she felt threatened by the Austins’
conduct and that on at least one occasion, she had called a sheriff
to escort her and her children back to her house after a
confrontation with Mr. Austin at one of the gates on the right-of-
way. Eventually, Mrs. Bingham sought medical treatment for the
stress and anxiety produced by the dispute.
¶9 As the dispute escalated, the Binghams proposed several
alternatives to closing the gates, including improving the cattle
guards to make them effective at keeping the cattle in pasture,
installing an automatic gate, and building a privacy fence
between the right-of-way and the Austins’ home. Although the
Binghams offered to undertake these improvements at their own
expense, the Austins rejected all of the proposals. Around this
time, “*o+ut of concerns for safety,” a neighbor granted the
Binghams permission to access their property through his
pasture. Mr. Bingham installed a fence and culverts to make a
passable lane, but this alternative route was difficult to traverse,
hard on vehicles at best and unusable in wet conditions.
¶10 The Austins commenced legal action against the
Binghams in June 2009. The Binghams counterclaimed, seeking
compensatory and punitive damages for the additional costs,
distress, inconvenience, and humiliation resulting from the
Austins’ interference with their use of the right-of-way. The trial
court entered temporary orders to govern the right-of-way
pending trial. Among other things, these orders directed the
Austins to leave the pasture gates open, except on Wednesdays
and Fridays when they were permitted to graze cattle on the
right-of-way, and instructed the Binghams to take certain steps
to make the cattle guards along the right-of-way functional.
Despite the court’s orders and the Binghams’ compliance with
their obligation, the Austins continued to close the right-of-way
gates. They also told the court at trial that they would continue
to close the gates even if the court ordered them to leave them
open after trial.

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¶11 After hearing the evidence at a bench trial in June 2012,
the trial court found “that the Binghams’ version of the facts
[about the right-of-way dispute] is more credible.” Accordingly,
the trial court dismissed the Austins’ claims and awarded the
Binghams $109,591 in damages, including punitive damages and
attorney fees. The trial court awarded the Binghams $20,000 in
punitive damages as a consequence of the Austins’ “willful and
malicious actions interfering with *the Binghams’] use of the
right-of-way[,] their harassment . . . [of] persons attempting to
enter and leave the Binghams’ home[,] and their repeated refusal
to obey the temporary orders entered in this case.” The court
awarded the Binghams all $48,897 of their attorney fees because
the Austins’ claims and their defenses to the Binghams’ suit
lacked merit and were brought in bad faith. The Austins now
appeal the factual findings supporting four of the components of
the damages award, totaling $30,600: $3,000 for Mrs. Bingham’s
medical treatment, $7,000 for Mr. Bingham’s inconvenience in
using the right-of-way, $8,600 for the Binghams’ improvement of
the alternative entrance, and $12,000 for Mrs. Bingham’s
additional time and travel on the alternative route. The Austins
do not appeal the award of punitive damages or bad faith
attorney fees, nor do they challenge the trial court’s stated basis
for either award. The Binghams request their attorney fees
incurred on appeal.
I. $3,000 in Medical Expenses
¶12 The Austins argue that the trial court clearly erred in
finding that “Mrs. Bingham requir*ed+ medical services and
medication costing $3,000” to cope with the stress and anxiety
resulting from the right-of-way dispute. Appellate courts “shall
not . . . set aside [a finding of fact] unless clearly erroneous,”
Utah R. Civ. P. 52(a), and the Austins appear to take the position
here that “the finding is without adequate evidentiary support,”
see Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046
(citation and internal quotation marks omitted). To make such a
showing, a party challenging a finding of fact must
“demonstrate that the evidence is legally insufficient to support
the finding . . . when viewing [the evidence] in a light most

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favorable to the court below.” Chen v. Stewart, 2004 UT 82, ¶ 76,
100 P.3d 1177 (citation and internal quotation marks omitted).
“*A+ party challenging a trial court’s factual finding must do
more than merely reargue the evidence supporting his or her
position.” Hi-Country Estates Homeowners Ass’n v. Bagley & Co.,
2008 UT App 105, ¶ 19, 182 P.3d 417 (citation and internal
quotation marks omitted). Rather, he or she
must present the evidence in a light most
favorable to the trial court and not attempt to
construe the evidence in a light favorable to [his
or her] case. [The challenging party] cannot
merely present carefully selected facts and
excerpts from the record in support of [his or
her] position. Nor can [he or she] simply restate
or review evidence that points to an alternative
finding or a finding contrary to the trial court’s
finding of fact.
Chen, 2004 UT 82, ¶ 78 (citations omitted). Then after marshaling
“all the evidence supporting the finding,” the challenging party
must “demonstrate that the evidence is legally insufficient to
support the findings.” Reid v. Mutual of Omaha Ins. Co., 776 P.2d
896, 899 (Utah 1989). The challenging party must also bear in
mind that “due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses.” Utah R. Civ.
P. 52(a).
¶13 The Austins have failed to meet this burden. Their
approach to this issue seems to focus on three principal
arguments about the evidence before the trial court. Their first
contention is based on a recital of evidence that supports their
position that Mrs. Bingham’s medical treatment was unrelated to
the Austins’ interference with the right-of-way. By focusing on
that evidence, the Austins largely ignore significant evidence
from the Binghams that supports the court’s decision that Mrs.
Bingham’s medical issues resulted from the Austins’ actions. For
example, the Binghams described multiple acts of intimidation
and harassment by the Austins in the two months before Mrs.

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Bingham sought medical treatment. Mrs. Bingham testified that
she had been the target of at least two verbal assaults by the
Austins in early 2009 and reported that the ongoing dispute had
caused her to be “worried about the safety of [her] children
. . . [,] about the safety of [her] husband daily . . . [, and] about
the safety of *her+self.” She told the court that it was due to the
Austins’ “threats” that she “checked *her+self into the ER” in
March 2009. This evidence demonstrates that the Austins have
failed to bear their burden on appeal of showing that the trial
court clearly erred in finding that Mrs. Bingham sought medical
treatment because of the Austins’ conduct.
¶14 Second, the Austins claim that certain testimony offered
by a neighbor about a particular threat to Mr. Bingham was
hearsay and that the cause of Mrs. Bingham’s medical needs was
the birth of her child, not the Austins’ behavior. These issues are
not preserved because the Austins neither objected to the
neighbor’s testimony at trial nor argued to the trial court that the
reason for Mrs. Bingham’s medical treatment was the stress of a
new baby. We will not consider unpreserved evidentiary
challenges or otherwise disturb the trial court’s finding based on
a theory that was not advanced at trial. Winward v. Goodliffe, 2011
UT App 292, ¶ 9, 263 P.3d 493 (“To preserve a contention of
error in the admission of evidence for appeal, a defendant must
raise a timely objection to the trial court in clear and specific
terms.” (citation and internal quotation marks omitted)); see also
Barson ex rel. Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 837–
38 (Utah 1984) (declining to consider a hearsay objection that
was not raised in the trial court and thus not preserved for
appeal). Even if we were to consider them, both the challenge to
the neighbor’s testimony and the “new baby” theory amount to
no more than arguments about the weight of the evidence and
are insufficient to carry the Austins’ heavy burden of showing
clear error in the factual finding supporting the court’s decision.
See Chen, 2004 UT 82, ¶¶ 76, 78.
¶15 Finally, the Austins contest the $3,000 award on the basis
that the Binghams did not provide any receipts or
documentation at trial to demonstrate that they incurred the

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claimed expenses or that the expenses were not covered by
insurance. Mrs. Bingham, however, testified that the “ER visits
are around $1500. The medication was very expensive . . . . We
figured all in all we were into it about $3000.” This testimony
supports the court’s decision. The absence of documentary
evidence is not fatal to the Binghams’ claim for medical
damages. Although it is true that documentary evidence, such as
bills or receipts, may provide a more accurate picture of the
scope of the damage, “trial courts are often faced with the
necessity of making factual findings based exclusively on oral
testimony.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 12, 271 P.3d
837; see also Utah R. Civ. P. 52(a) (explaining that deference must
be given to the trial court’s findings of fact, whether those
findings are based on oral or documentary evidence). The trial
court explained that it was “persuaded” by Mrs. Bingham’s
recollection that her medical bills totaled $3,000. When there is
credible evidence—oral or documentary—to support the
finding, the finding is not clearly erroneous, even if stronger
evidence might have been provided. Hale, 2012 UT App 283, ¶ 9.
¶16 In sum, there is evidence to support the trial court’s
finding that Mrs. Bingham incurred $3,000 in medical treatment
as a result of the Austins’ behavior in connection with the right-
of-way dispute, and we will not disturb it.
II. $7,000 for Interference with the Right-of-Way
¶17 The Austins also challenge the trial court’s findings that
“the Binghams sustained . . . $7,000[] in damages for [the]
inconvenience of unnecessarily opening and closing gates” along
the right-of-way “for 1,232 days . . . an average of 4 times a day.”
The Austins challenge these findings by arguing that the
damages are based on approximations and do not accurately
reflect the Binghams’ usage.
¶18 The Austins first contend that the Binghams failed to
adequately establish the amount of damages because they based
their costs on approximations. To recover damages, a party must
prove the fact that damages occurred and the amount of those

Austin v. Bingham
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damages. Atkin Wright & Miles v. Mountain States Tel. & Tel. Co.,
709 P.2d 330, 336 (Utah 1985). The Austins do not dispute that
the Binghams incurred damages as a result of the Austins’
interference with the usage of the right-of-way, only the
sufficiency of their proof of the amount of those damages.
¶19 Proof of the amount of damages does not require
precision. Cook Assocs., Inc. v. Warnick, 664 P.2d 1161, 1166 (Utah
1983). Rather, a plaintiff need only put on “evidence that rises
above speculation and provides a reasonable, even though not
necessarily precise, estimate of damages.” Atkin, 709 P.2d at 336.
Proof of damages may therefore “be based upon
approximations, if . . . the approximations are based upon
reasonable assumptions or projections.” Id. This is because once
the fact of damages has been established, any uncertainty in the
amount of damages must be borne by the wrongdoer. Id.; see also
Cook, 664 P.2d at 1166.
¶20 At trial, Mr. Bingham testified that for a period of 1,200
days,3 he had opened the three gates on the right-of-way four
times a day. Mr. Bingham estimated that the inconvenience of
the extra time and effort involved amounted to $1 per gate, or
$12 per day, for a total of about $14,000 in damages. Although
Mr. Bingham did not explain how he reached the estimate, the
nominal amount of $1 per gate appears to be his effort to
quantify the cost of the hassle and inconvenience of having to
exit his vehicle and accomplish the task of opening the gate—a
task that was, at times, deliberately made more difficult by the
3. From the time the Austins began closing the gates in January
2009 until trial in June 2012, 1,232 days had elapsed. Mr.
Bingham apparently rounded this figure down and referred to
the time period as 1,200 days. The trial court was more precise
and referred to the actual number of elapsed days. The thirty-
two day difference does not affect our analysis, and for accuracy,
we use the 1,200-day figure when referring to Mr. Bingham’s
testimony and the 1,232-day figure when referencing the court’s
decision.

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Austins. Indeed, even the trial court recognized that the value of
this kind of harm is a “tough one to estimate.” The Austins did
not provide any contrary testimony but instead sought to
undercut Mr. Bingham’s testimony by pointing out that “the $1
per gate . . . [was] just a dollar amount that [Mr. Bingham]
assigned” after he had testified the day before that he “did not
put a dollar amount on anything.” And the trial court seemed to
give some weight to that concern when it determined that Mr.
Bingham’s “figure for the opening of the gate*s+ is too high” and
entered a finding that the damage to Mr. Bingham from having
to open all the gates across the right-of-way multiple times daily
over a period of several years was $7,000, or just under $0.50 per
gate. That the Austins had wrongfully imposed an extra burden
of time, effort, and aggravation on Mr. Bingham, and did so
deliberately, is not disputed, and the amount of damages he
suffered is not calculable by any ready measure or formula. Cf.
Weeks v. Calderwood, 191 P.3d 1, 3 (Utah 1979) (noting that
general damages in a personal injury case, such as pain and
suffering, “are necessarily largely subjective and difficult to
appraise in precise money value”). The court’s approach seems a
reasonable attempt to quantify the burden, and we therefore
conclude that the Austins have not demonstrated any error in
the trial court’s determination of the gate-related damages.
¶21 Next, the Austins contend that the court’s findings that
the Binghams were damaged by having to open the gates four
times a day for all 1,232 days that the gates were closed was
erroneous because it failed to take into account any decreased
usage on weekends, holidays, sick days, vacations, etc. Mr.
Bingham testified, however, that he used the right-of-way four
times a day every day for 1,200 days, and the Austins failed to
elicit any contrary testimony. Thus, given Mr. Bingham’s
undisputed testimony, there is evidence to support the court’s
findings that “the Binghams sustained . . . damages for [the]
inconvenience of unnecessarily opening and closing gates” along
the right-of-way “for 1,232 days . . . an average of 4 times a day.”
See generally Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 9, 288
P.3d 1046 (“A finding is clearly erroneous . . . if the finding is
without adequate evidentiary support . . . .” (citation and

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internal quotation marks omitted)). The Austins’ argument
therefore amounts to a challenge to the weight of the evidence, a
matter we leave to the judgment of the trial court that heard and
considered the evidence, see Henshaw v. Henshaw, 2012 UT App
56, ¶ 12, 271 P.3d 837 (explaining that it is the role of the
factfinder to weigh the evidence and assess credibility).
III. $8,600 for Improvement of the Alternative Entrance Way
¶22 The Austins contend that the trial court’s finding that the
Binghams “spent $8,600.00 in fencing and culverts to make the
alternate route usable” is clearly erroneous. To support this
position, they assert that Mr. Bingham offered testimony about
the cost of the improvements on the first day of trial ($8,000) that
was inconsistent with his testimony on the second day ($8,600),
rendering his estimate of damages too unreliable to support the
trial court’s award. They also contend, as they did with the
damages for medical expenses, that the trial court erroneously
accepted the $8,600 estimate without supporting documentary
evidence.
¶23 Mr. Bingham testified on the first day of trial that he “put
in $8000 worth of culverts and fence” to improve the neighbor’s
pasture enough to make it passable. On the second day of trial,
Mr. Bingham testified that he had made “some effort to try to
put some numbers to it” and that “to just make [the alternative
route] passable by putting culverts and fence . . . was almost
$8600.” A $600 inconsistency, explained as the result of further
reflection about the matter overnight, does not seem to be so
significant as to render the whole of his testimony incredible or
speculative or to render clearly erroneous the court’s
determination that Mr. Bingham’s testimony was credible. See
Woodward v. LaFranca, 2013 UT App 147, ¶¶ 16, 19, 305 P.3d 181
(concluding that the trial court exceeded its discretion when it
rejected the testimony of a custody evaluator as not credible
when the testimony contained only “minor inconsistencies” that
were “not sufficient to compromise the [evaluator’s+ overall
credibility”). Rather, it appears that the court accepted Mr.
Bingham’s explanation that on the first day of trial, he provided

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a ballpark figure, but by the second day, he had made “some
effort” to further refine the amount expended. See generally Utah
R. Civ. P. 52(a) (“*D]ue regard shall be given to the opportunity
of the trial court to judge the credibility of the witnesses.”); Hal
Taylor Assocs. v. Unionamerica, Inc., 657 P.2d 743, 749 (Utah 1982)
(explaining that when there is conflicting testimony, an appellate
court assumes that the trial court believed the testimony that
supports its finding).
¶24 Furthermore, the absence of documentary evidence to
support Mr. Bingham’s claim for $8,600 in improvement
damages does not render the court’s finding clearly erroneous.
As discussed above, see supra ¶ 15, written documentation can, at
times, carry greater weight than oral testimony about damage
amounts, but trial courts are capable of making findings from
oral testimony as well. Henshaw, 2012 UT App 56, ¶ 12. Because
there is credible evidence in the record to support the trial
court’s finding that the Binghams expended $8,600 to improve
the alternative entrance, we will not disturb it.
IV. $12,000 for Additional Time and Travel
¶25 The Austins also assert that the trial court’s decision to
award the Binghams $12,000 for the extra time and travel Mrs.
Bingham expended to use the alternative entrance is not
supported by sufficient evidence. The court awarded the
Binghams $4,000 to compensate them for Mrs. Bingham’s having
to “travel 8/10 of a mile longer to and from their home averaging
ten times a day for 1013 days for a total of 8104 miles.” The 8,104
miles could be traveled at no more than 20 miles per hour, and
thus the court also awarded the Binghams $8,000 for the “405
hours additional time” it took to drive the alternative route. In
calculating the damage award for additional travel time, the
court accepted testimony that Mrs. Bingham’s additional time
should be compensated at a rate of $20 an hour.
¶26 The Austins raise three concerns regarding the court’s
award of $12,000 in damages for additional travel time. First,
they seem to challenge the mileage and time calculations.

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Second, they challenge the usage estimation. Finally, they
challenge the valuation of Mrs. Bingham’s time.
¶27 First, the Austins appear to claim that there is insufficient
evidence to support the trial court’s findings that Mrs. Bingham
spent 405 additional hours to travel an additional 8,104 miles on
the alternative route between June 2009, when the alternative
route was built, and June 2012, when trial was held. The Austins,
however, have failed to acknowledge evidence in the record that
supports the court’s determination. See generally Utah R. Civ. P.
52(a) (directing appellate courts not to “set aside *a finding of
fact+ unless clearly erroneous”); Hale v. Big H Constr., Inc., 2012
UT App 283, ¶ 9, 288 P.3d 1046 (“A finding is clearly erroneous
. . . if the finding is without adequate evidentiary support . . . .”
(citation and internal quotation marks omitted)). Regarding the
additional travel distance, Mr. Bingham testified that “it is .8
miles longer to go around using the [alternative] access through
the pasture.” He also said that Mrs. Bingham “on average has
about five different errands to run every day . . . *s+o that’s 10
times that she has to go that extra .8 miles.” Mr. Bingham
calculated that the alternative entrance has been in use “for over
1,000 days”—at least since litigation commenced in June 2009—
“so that’s 8100 miles” of extra travel. Mr. Bingham requested
compensation for the extra mileage at the standard IRS
reimbursement rate of $0.50 per mile (a rate the Austins do not
challenge). With respect to the additional time that Mrs.
Bingham expended in traveling the alternative route, she
testified that she could travel at no more than five miles per hour
in her vehicle because of the primitive condition of the route
through the neighbor’s pasture. Mr. Bingham testified that Mrs.
Bingham could travel the .8-miles at “about 20 miles an hour.”
The Austins did not put on any contrary evidence; instead, they
simply attempted to undercut these calculations by pointing out
that Mrs. Bingham herself did not testify that she uses the
alternative route ten times each day and that she normally is not
compensated for her travel time while running errands. The
court resolved the dispute in favor of the Binghams but based its
award on the higher travel speed that Mr. Bingham testified to,

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20120765-CA 15 2014 UT App 15
an estimate significantly more favorable to the Austins than Mrs.
Bingham’s estimate of five miles per hour.
¶28 The Austins’ second argument is that the court’s findings
did not take into consideration the number of days that the
alternative entrance was not used due to wet conditions that
made the route impassable or the weekends, holidays, sick days,
vacation days, etc. when Mrs. Bingham’s use of the alternative
route diminished. As with the use of the right-of-way, there was
testimony from both Mr. and Mrs. Bingham that she used the
alternative entrance for 1,000 days, and Mr. Bingham testified
that Mrs. Bingham took ten trips a day on the alternative route.
The Austins did not elicit any evidence about decreased usage
on weekends or holidays or due to illness or travel. While the
Austins’ claim that the alternative route was sometimes
impassable has support in the record, it appears that Mr.
Bingham discounted his estimate in the first place. Mrs. Bingham
testified that the alternative route had existed for a couple of
years “since about the time . . . this litigation commenced” on
June 1, 2009. Between June 1, 2009, and June 13, 2012, when trial
concluded, 1,108 days had elapsed. Mr. Bingham’s figure of
1,000 days therefore seems to leave room for periods of time
when the alternative route was impassable. And although the
Austins contend that there was conflicting testimony in the
record that demonstrated that Mrs. Bingham used the right-of-
way through the Austins’ property at least some of the time
during the more than 1,000 days that the alternative entrance
was available, we defer to the trial court’s superior ability to
evaluate and weigh the evidence and the relative credibility of
each witness, Henshaw v. Henshaw, 2012 UT App 56, ¶ 12, 271
P.3d 837, and assume that the court believed the evidence that
supported its findings, Hal Taylor Assocs. v. Unionamerica, Inc.,
657 P.2d 743, 749 (Utah 1982).
¶29 Finally, the Austins claim that Mr. Bingham’s testimony
that Mrs. Bingham’s time is worth $20 per hour lacks foundation
because it is not supported by any work or educational history
or any information about prevailing wages in the area. In
essence, the Austins are objecting to the admissibility of the

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20120765-CA 16 2014 UT App 15
evidence for lack of foundation. But the Austins made no such
objection to this evidence at trial and instead have raised the
issue for the first time on appeal. “To preserve a contention of
error in the admission of evidence for appeal, a defendant must
raise a timely objection to the trial court in clear and specific
terms.” Winward v. Goodliffe, 2011 UT App 292, ¶ 9, 263 P.3d 493
(citation and internal quotation marks omitted). “*B+y not
objecting at trial on the basis of lack of foundation,” the Austins
have not preserved the objection for appeal. See Clayton v. Ford
Motor Co., 2009 UT App 154, ¶ 49, 214 P.3d 865. Accordingly, we
decline to consider the Austins’ claim that Mr. Bingham did not
offer a foundation for his testimony that Mrs. Bingham’s time
was worth $20 an hour.
¶30 Because the objection cannot be considered for the first
time on appeal, we must treat the testimony that Mrs. Bingham’s
time was worth $20 an hour as properly before the trial court, in
which case the court was entitled to consider it in reaching its
decision regarding the amount of damages. Thus, the Austins’
only reviewable challenge must be to the weight that could be
given that testimony. As we have discussed, however, decisions
about how much weight to give to certain evidence are properly
left to the finder of fact to resolve. Henshaw, 2012 UT App 56,
¶ 12. And the trial court’s decision to weigh that evidence in the
Binghams’ favor is therefore well within its discretion, and we
cannot second-guess it on appeal.
¶31 Accordingly, we conclude that the Austins’ challenges to
the trial court’s findings with regard to Mrs. Bingham’s
additional time and travel are not well taken.
V. Attorney Fees on Appeal
¶32 The Binghams request their attorney fees on appeal. The
trial court awarded attorney fees to the Binghams pursuant to
the bad faith statute because “the vast majority of the *Austins’+
claims and more importantly the defenses of the Austins . . .
have been without factual or legal merit” and were not brought
in good faith. See Utah Code Ann. § 78B-5-825 (LexisNexis 2012)

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20120765-CA 17 2014 UT App 15
(“In civil actions, the court shall award reasonable attorney fees
to a prevailing party if the court determines that the action or
defense was without merit and not brought or asserted in good
faith.”). The Austins have not challenged the propriety of the
court’s award of fees under the bad faith statute.
¶33 “*W+hen 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) (citation and internal quotation marks omitted). This
is true even when the basis for attorney fees in the trial court is
the bad faith statute. Id. (awarding attorney fees incurred on
appeal where the appellees received bad faith attorney fees in
the trial court and prevailed on appeal); Livingston Fin., LLC v.
Migliore, 2013 UT App 58, ¶¶ 9, 11, 299 P.3d 620 (per curiam)
(same), cert. granted, 308 P.3d 536 (Utah July 10, 2013) (No.
20130337); Dantine v. Shores, 2011 UT App 392, ¶ 7, 266 P.3d 188
(per curiam) (same). Accordingly, we award reasonable attorney
fees on appeal to the Binghams and remand the case to the trial
court to determine the amount.
VI. Conclusion
¶34 We affirm the damages judgment for the Binghams. We
grant the Binghams’ request for their attorney fees incurred on
appeal and remand for the trial court to calculate the amount.
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