Gardiner v. Anderson

2018 UT App 167

THE UTAH COURT OF APPEALS

RICHARD E. GARDINER,

Appellant and Cross-appellee,

v.

NELS ANDERSON,

Appellee and Cross-appellant.

Opinion

No. 20170551-CA

Filed August 30, 2018

Fourth District Court, Fillmore Department

The Honorable Jennifer A. Brown

No. 160700010

Todd F. Anderson, Attorney for Appellant

and Cross-appellee

Marlin J. Grant, Attorney for Appellee

and Cross-appellant

JUDGE KATE A. TOOMEY authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

TOOMEY, Judge:

¶1 Richard E. Gardiner (Landlord) appeals the district

court’s grant of summary judgment in favor of Nels Anderson

(Tenant). Tenant cross-appeals the court’s decision to award

Landlord attorney fees with respect to Landlord’s motions to

strike and the court’s denial of Tenant’s request for attorney fees

as the prevailing party. We affirm the district court’s grant of

summary judgment in favor of Tenant because Landlord’s claim

fails as a matter of law. We remand to the district court to

provide findings of fact and conclusions of law to support its

decision to award attorney fees to Landlord for the motions to

strike. We reverse the district court’s conclusion that the Lease

did not trigger the reciprocal attorney fees statute and remand

Gardiner v. Anderson

for the court to determine whether Tenant should be awarded

attorney fees as the prevailing party. We further conclude

Tenant is entitled to attorney fees on appeal and remand to

determine the reasonable amount of fees incurred on appeal and

cross-appeal.

BACKGROUND

¶2 On November 1, 2013, Landlord and Tenant entered into

a lease agreement (the Lease) for a warehouse building (the

Warehouse) to last for two years until October 31, 2015. The

Lease provided that Tenant was to “repair” the Warehouse “at

[Tenant’s] sole cost and expense, including, but not limited to,

electrical fixtures, interior painting and decorating, and glass

replacement.” The agreed rent escalated gradually over time

from $600 per month to $1,000 per month. The Lease prohibited

Tenant from subleasing the Warehouse without Landlord’s prior

written consent. The sublease provision states:

[Tenant] shall not . . . sublet or permit the leased

premises or any part thereof to be used by others

for any purpose, without prior written consent of

[Landlord] being first obtained in each instance;

provided, however, that regardless of any such

assignment or sublease, [Tenant] shall remain

primarily liable for the payment of the rent herein

reserved and for the performance of all the other

terms of this lease required to be performed by

[Tenant].

¶3 Despite this provision, Tenant entered into an oral

agreement to sublet the Warehouse to a subtenant (Subtenant),

beginning November 1, 2013—the same day the Lease went into

effect—without Landlord’s written consent. Tenant and

Subtenant orally agreed that Subtenant would pay $2,250 per

month in rent from November 1, 2013, through October 31, 2014;

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and $3,000 per month from November 1, 2014, through March

31, 2015. They later signed a written agreement to sublet 1 the

Warehouse for $5,000 per month from April 1, 2015, to

September 30, 2015.

¶4 In July 2015, Landlord discovered that Tenant was

subletting the Warehouse and sent Tenant a letter in September

2015, giving Tenant written notice of his default of the sublease

provision and giving him ten days to cure by paying Landlord

$30,000. Because Tenant chose not to cure the breach, Landlord

terminated the Lease pursuant to its default provisions. Tenant

promptly vacated the Warehouse.

¶5 A few months later, Landlord filed a complaint, alleging

that Tenant unlawfully detained the Warehouse, breached the

Lease, and was unjustly enriched by the Sublease. Landlord

claimed he had been damaged by the Sublease in the amount of

$53,100, arguing that he “would have agreed to the Sublease if

Tenant had paid Landlord the difference between Tenant’s rent

and what Tenant received from [Subtenant].” Landlord sought

treble damages in the amount of $159,300 and reasonable

attorney fees, arguing that the Sublease amounted to an

unlawful detainer under Utah Code section 78B-6-802(1)(d).

Alternatively, he sought $53,100 in damages for either breach of

contract or unjust enrichment, stating that “it would be unjust

for the Tenant to retain the benefit from the sublet rent that he

received.”

¶6 Tenant filed an answer and later a Motion to Dismiss or in

the Alternative for Summary Judgment (Tenant’s Motion for

Summary Judgment). He attached a Verified Memorandum of

Points and Authorities (the Verified Memorandum) in which he

1. We refer to the oral and written agreements, collectively, as

the Sublease.

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swore “under oath to tell the whole truth.” In the Verified

Memorandum, Tenant articulated material facts that were

substantially similar to Landlord’s complaint, including that

Tenant breached the Lease, entered into a Sublease, chose not to

cure the breach, and vacated in a timely fashion pursuant to the

Lease’s default provision. He referred to Landlord’s complaint

and the exhibits attached to it to support these facts. Tenant also

argued that Landlord’s unlawful detainer claim failed because

Tenant returned possession of the Warehouse to Landlord before

the term of the notice expired. He further argued that Landlord

had no remedy for breach of contract because the Lease allowed

Landlord to terminate the Lease and collect the $1,000 rent due

each month through the end of the Lease, which included lost

rents from Tenant between September 14, 2015, and October 31,

2015, but, according to Tenant, nothing in the Lease entitled

Landlord to the rent from the Sublease. Finally, he argued that

without evidence of an unlawful detainer or a provision in the

Lease that would entitle Landlord to such damages, Landlord

could not claim that Tenant was unjustly enriched from the rent

collected under the Sublease.

¶7 Landlord opposed Tenant’s Motion for Summary

Judgment, arguing that the Verified Memorandum did not

comply with rule 56 of the Utah Rules of Civil Procedure

because it did “not state that the facts set forth in the pleading

were true and correct to the personal knowledge of the signer,”

and instead “attempt[ed] to verify the entire contents of the

pleading, not just the factual assertions, and some of the facts

sworn were . . . mere assumptions or conclusions.” 2 Landlord

2. We note that Landlord’s complaint and motion for summary

judgment also included “mere assumptions or conclusions,” the

most notable being that his statement of facts asserted that

Landlord “would have agreed to the sublease if [Tenant] had

(continued…)

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also “[d]isputed” many of the facts in the Verified

Memorandum, essentially claiming that the facts were not

relevant to the complaint or re-characterizing the way Tenant

had articulated them. 3

¶8 Landlord then filed his own motion for summary

judgment (Landlord’s Motion for Summary Judgment), asserting

that there was no dispute as to any material fact and arguing

that subletting the Warehouse without Landlord’s written

consent was an unlawful detainer and a breach of contract,

which “entitled [him] to judgment” for $153,600 4 plus reasonable

attorney fees and post-judgment interest. Shortly thereafter,

Tenant filed a reply memorandum in support of his own motion

for summary judgment and then a memorandum in opposition

(…continued)

paid [Landlord] the difference between [Tenant’s] rent and what

[Tenant] received from [Subtenant].”

3. For example, Tenant’s Verified Memorandum stated that he

did not hear from Landlord after Tenant vacated until he was

served with a summons in May 2016. Landlord “[d]isputed” this

fact and referred to his own affidavit stating that there was an

email thread between Landlord and Tenant about an event

unrelated to the dispute regarding the Lease, the Sublease, or the

Warehouse. It would not be unreasonable to infer that Tenant’s

stated fact meant that he had not heard from Landlord with

respect to the breach of the Lease or Landlord’s request for the

excess rent as damages as a consequence of that breach until he

was served with a summons.

4. Landlord’s calculation of damages in his motion for summary

judgment differs from the amount articulated in his complaint.

Because we conclude Landlord was not entitled to any of his

claimed damages, we do not address this discrepancy.

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to Landlord’s Motion for Summary Judgment. Landlord filed

motions to strike both of these replies (the Motions to Strike),

claiming they were untimely filed and failed to comply with the

Utah Rules of Civil Procedure. The district court heard argument

on the Motions to Strike and ultimately struck Tenant’s two

reply memoranda for being untimely and ordered Tenant to pay

Landlord attorney fees and costs related to the Motions to Strike.

But the court determined that, because Tenant filed a motion for

summary judgment, Landlord’s Motion for Summary Judgment

was opposed and the court would therefore “consider

arguments and material” from the Verified Memorandum. 5

5. Even in situations where a motion for summary judgment is

unopposed, the moving party bears the burden of showing that

it is entitled to summary judgment as a matter of law by

demonstrating it is entitled to the remedy it seeks either under a

contract or law. Utah R. Civ. P. 56(a). Summary judgment may

be granted to a nonmoving party even if the nonmoving party

did not file a memorandum in opposition to the moving party’s

motion for summary judgment. See id. R. 56(f)(1) (explaining that

a court may enter judgment “independent of the motion” and

may “grant summary judgment for a nonmoving party” “[a]fter

giving [the nonmoving party] notice and a reasonable time to

respond”). In addition, with respect to cross-motions for

summary judgment, as is relevant here, each party “must

establish its own entitlement to summary judgment rather than

simply rely on the other party’s failure on its own motion.”

Martin v. Lauder, 2010 UT App 216, ¶ 7, 239 P.3d 519. Further,

this court has determined that “[c]ross-motions for summary

judgment do not ipso facto dissipate factual issues, even though

both parties contend that they are entitled to prevail because

there are no material issues of fact.” Id. ¶ 8 (quotation

simplified). “Rather, cross-motions may be viewed as involving

a contention by each movant that no genuine issue of fact exists

(continued…)

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¶9 The district court considered both parties’ motions for

summary judgment. It concluded that nothing in the unlawful

detainer statute or the Lease supported Landlord’s claim for

damages of $53,100 in rent Tenant obtained from the Subtenant.

The court determined that “the only remedy [Landlord] appears

to be entitled to is a declaration under [the unlawful detainer

statute] that the [Lease] is forfeited due to [Tenant’s] failure to

perform a condition or covenant therein.” Tenant complied with

Landlord’s notice to vacate when he elected to promptly vacate

the Warehouse rather than cure the breach and therefore did not

unlawfully possess it. The court further concluded that even if

Tenant was in “unlawful detainer” of the Warehouse under Utah

Code section 78B-6-802(1)(d) for unauthorized subletting, that

section “does not specifically provide for damages for

unauthorized subletting” and neither did the Lease. As a result,

the court granted summary judgment in favor of Tenant and

denied Landlord’s cross-motion.

¶10 In light of judgment in his favor, Tenant requested

attorney fees, contending that he was the prevailing party in the

lawsuit because he successfully defended against Landlord’s

complaint. He also argued that he was entitled to attorney

fees under the unlawful detainer statute because he

successfully defended against the claim of unlawful detainer.

Landlord challenged the request, arguing that the Lease’s

enforcement provision provided for attorney fees only to the

(…continued)

under the theory it advances, but not as a concession that no

dispute remains under the theory advanced by its adversary.” Id.

(quotation simplified). “In effect, each cross-movant implicitly

contends that it is entitled to judgment as a matter of law, but

that if the court determines otherwise, factual disputes exist

which preclude judgment as a matter of law in favor of the other

side.” Id. (quotation simplified).

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party not in breach of the Lease. The enforcement provision

states:

Should either party default in the performance of

any covenants or agreements contained herein,

such defaulting party shall pay to the other party

all costs and expenses, including but not limited to,

. . . reasonable attorney’s fee[s], including such fees

on appeal, which the prevailing party may incur in

enforcing [the Lease] or in pursuing any remedy

allowed by law for breach hereof.

¶11 The district court denied Tenant’s request, concluding

that Tenant was the defaulting party and that the Lease “does

not provide a basis for an award of attorney fees to . . . the party

in default.” The court further concluded that Landlord did not

become the party in default by virtue of losing the lawsuit. The

court also concluded that Tenant was not entitled to attorney

fees under the unlawful detainer statute, because the provision

that would have allowed for such an award was not in effect

until May 2017, 6 after the complaint had been filed. Because the

statute did not state that it could be applied retroactively and

because the statute was not amended to clarify its meaning in

response to judicial action, the court concluded Tenant was not

6. Effective May 9, 2017, the unlawful detainer statute was

amended to add a subsection that states: “In an action under this

chapter, the court may award costs and reasonable attorney fees

to the prevailing party.” Utah Code Ann. § 78B-6-811(5)

(LexisNexis Supp. 2017). Prior to the amendment, only one

subsection of the statute included attorney fees language: “The

judgment shall be entered against the defendant for the rent, for

three times the amount of the damages assessed under

Subsections (2)(a) through (2)(e), and for reasonable attorney

fees.” Id. § 78B-6-811(3) (2012).

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entitled to attorney fees under that statute. (Citing Utah Code

Ann. § 86-3-3 (LexisNexis 2016); Wasatch County v. Okelberry,

2015 UT App 192, ¶ 17, 357 P.3d 586.)

¶12 Landlord appeals the court’s grant of summary judgment

in favor of Tenant. Tenant cross-appeals the court’s order

requiring him to pay attorney fees for the Motions to Strike and

for the denial of his request for attorney fees as the prevailing

party.

ISSUES AND STANDARDS OF REVIEW

¶13 Landlord contends the district court erred in granting

summary judgment in favor of Tenant in three respects. He first

argues that the court should have denied Tenant’s Motion for

Summary Judgment “on its face” because the Verified

Memorandum did not include citations to “particular parts of

materials in the record” in violation of rule 56(a) of the Utah

Rules of Civil Procedure. Second, he argues that Landlord’s

Motion for Summary Judgment should have been granted

because the court should have dismissed the Verified

Memorandum in its entirety based on its failure to conform with

rule 56 and therefore the court could not have relied on it as a

replacement for Tenant’s opposition to Landlord’s Motion for

Summary Judgment. 7 Third, Landlord argues that the court

7. Landlord further contends the district court erred in denying

his motion for summary judgment because it was unopposed.

We note, however, that in Landlord’s Motion for Summary

Judgment he cited the Verified Memorandum in his statement of

facts to support the factual assertion of the amount of rent

Tenant collected from Subtenant under the Sublease. He

therefore relied on a document, the Verified Memorandum, that

he asserts the court should not have considered in determining

whether there was a dispute as to any material fact. We decline

(continued…)

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erred in determining that the Lease did not afford him the

damages he sought. 8

¶14 Summary judgment is appropriate where “there is no

genuine dispute as to any material fact and the moving party is

entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).

“We review the district court’s grant of summary judgment for

correctness and accord no deference to its conclusions of law.” 9

(…continued)

to address this claim for two reasons. First, as discussed infra

¶¶ 16–20, Landlord’s claim fails as a matter of law, because the

remedy he seeks is not available under the Lease or case law

from any jurisdiction. Second, the district court has discretion in

requiring compliance with briefing requirements under rule 56

of the Utah Rules of Civil Procedure, see Bluffdale City v. Smith,

2007 UT App 25, ¶ 5, 156 P.3d 175, and could therefore review

the Verified Memorandum because it complied with the purpose

of that rule and was beneficial to the court’s determination.

8. On appeal, Landlord has abandoned his unlawful detainer

claim and elected to proceed on the court’s ruling only with

respect to his claim for damages under the breach of the Lease.

9. We take this opportunity to address some confusion raised by

Landlord as to the applicable standard of review. Use of the

terms “for correctness,” “de novo,” and “correction of error”

under the Issues and Standards of Review sections of our

opinions mean that we afford “no deference” to the district

courts’ rulings with respect to their legal conclusions. See Salt

Lake County v. Holliday Water Co., 2010 UT 45, ¶ 14, 234 P.3d 1105

(“We review a summary judgment determination for

correctness, granting no deference to the district court’s legal

conclusions.” (quotation simplified)); Innerlight, Inc. v. Matrix

Group, LLC, 2009 UT 31, ¶ 8, 214 P.3d 854 (“We review a district

(continued…)

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Dillon v. Southern Mgmt. Corp. Ret. Trust, 2014 UT 14, ¶ 21, 326

P.3d 656 (quotation simplified). “We may affirm the result

reached by the [district] court if it is sustainable on any legal

ground or theory apparent on the record, even though that

ground or theory was not identified by the lower court as the

basis of its ruling.” Id. (quotation simplified).

¶15 Tenant cross-appeals and contends the district court erred

in awarding attorney fees to Landlord for the Motions to Strike. 10

(…continued)

court’s grant of summary judgment de novo, considering the

record as a whole, with no deference afforded to the legal

conclusions of the district court.”); Raile Family Trust ex. rel. Raile

v. Promax Dev. Corp., 2001 UT 40, ¶ 8, 24 P.3d 980 (“On appeal

from the district court’s ruling on summary judgment, we apply

a correction of error standard, affording the [district] court’s

ruling no deference.”).

10. Landlord filed a motion to dismiss Tenant’s cross-appeal

with respect to this issue. Landlord contends the issue is “moot”

because Tenant has already paid the attorney fees related to the

Motions to Strike. In support, Landlord cites rule 58B(c) of the

Utah Rules of Civil Procedure and Richards v. Brown, 2012 UT 14,

274 P.3d 911, abrogated on other grounds by Utah Res. Int’l, Inc. v.

Mark Techs. Corp., 2014 UT 59, 342 P.3d 761. But his reliance on

these sources is misplaced. Under rule 58B(c), “[s]atisfaction of a

judgment, whether by acknowledgment or order, discharges the

judgment, and the judgment ceases to be a lien as to the debtors

named and to the extent of the amount paid.” Utah R. Civ. P.

58B(c). This means that the party who was paid the judgment

cannot seek more damages for the same judgment from the same

debtor (that is, the person who paid the judgment) after

accepting the payment. As applied to this case, Landlord could

not appeal any claimed error in the amount of attorney fees

(continued…)

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(…continued)

awarded for preparing the Motions to Strike, because Tenant

paid the attorney fees he was ordered to pay to satisfy the

judgment and Landlord has accepted those fees. The rule does

not, on its face, prohibit Tenant, as the debtor, from appealing

the amount or the order.

Similarly, Landlord’s use of Richards is misplaced.

Landlord selectively quoted a “general rule” that did not apply

in Richards and does not apply in this case. The Richards court

explained, “The general rule is that if a judgment is voluntarily

paid, and is accepted, and a judgment is thereby satisfied, the

controversy has become moot and the right to appeal is waived.”

2012 UT 14, ¶ 13 (emphasis added) (quotation simplified). But

the Richards court determined that, although the appellant had

accepted payment as satisfaction of the judgment of one of his

claims, he did not waive his right to appeal because “the appeal

is waived only for the specific claims upon which payment is

accepted.” Id. ¶¶ 13–16. The Richards court did not discuss

whether a party who pays a judgment under protest is

precluded from appealing whether the court properly ordered

the payment. To the contrary, the Utah Supreme Court has

clarified that, “although the general rule that voluntary payment

of a judgment waives one’s right to appeal is still valid, where a

judgment debtor’s intention of preserving his right to appeal is

made to appear clearly on the record, he does not waive his right

to appeal.” Mark Techs. Corp., 2014 UT 59, ¶ 33 (quotation

simplified).

Here, although Tenant paid the fees, he did so under

protest and is therefore not precluded from appealing the district

court’s order with respect to the propriety of those fees. See id.

Tenant objected to the award of attorney fees to Landlord,

requested the court stay the order awarding attorney fees until

after a decision on appeal, and then filed a notice of cross-appeal

with the intent to challenge that award, as well as the court’s

(continued…)

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Tenant further contends the court erred in denying his request

for attorney fees as the prevailing party and for “defend[ing]

against this unnecessary litigation” where Tenant timely vacated

the Warehouse in accordance with the terms of the Lease.

“Whether attorney fees are recoverable in an action is a question

of law, which we review for correctness.” Express Recovery

Services Inc. v. Olson, 2017 UT App 71, ¶ 5, 397 P.3d 792

(quotation simplified). “We review the [district] court’s

determination as to who was the prevailing party under an

abuse of discretion standard.” Id. (quotation simplified). 11

(…continued)

failure to award Tenant attorney fees for successfully defending

the case. We conclude Landlord’s argument is without merit and

address both of Tenant’s attorney fees issues.

11. Landlord also contends he “should have been awarded

reasonable attorney’s fee and costs and expenses where [Tenant]

was found to have breached [the Lease] and thus was in default

in the performance of [the Lease].” (Quotation simplified.) He

asserts the issue was preserved because he requested reasonable

attorney fees in Landlord’s Motion for Summary Judgment, but

that the court “did not address the issues, however, in its

[ruling], presumably because, having held that [the Lease] does

not provide for damages as requested by [Landlord], [Landlord]

was also not eligible for a reasonable attorney’s fee.” This

argument is unpreserved. “An issue is preserved for appeal

when it has been presented to the district court in such a way

that the court has an opportunity to rule on it.” Patterson v.

Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (quotation simplified).

We will not address an unpreserved issue on appeal unless the

appellant argues that an exception to the preservation rule

applies. Id. ¶¶ 12–13. Although Landlord vaguely requested

reasonable attorney fees in his motion for summary judgment—

(continued…)

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ANALYSIS

I. Motion for Summary Judgment

¶16 Landlord contends the district court erred in granting

summary judgment in favor of Tenant for three reasons. But

because we can affirm summary judgment on any ground or

theory apparent on the record, regardless of whether it was

identified by the district court as the basis of its ruling, see Dillon,

2014 UT 14, ¶ 21, we do not address each of his arguments and

instead affirm on the basis that Landlord’s claim fails as a matter

of law. We agree with the district court that the Lease “does not

provide for damages as requested by [Landlord].”

¶17 Landlord argues that “the law must provide a remedy in

damages” and that “‘damages are properly measured by the

amount necessary to place the nonbreaching party in as good a

position as if the contract had been performed.’”12 (Quoting

(…continued)

stating that his damages included “reasonably incurred attorney

fees (provided for by contract)”—he did not argue below that

the court improperly failed to rule on his request for attorney

fees, and he failed to provide any argument below for why the

Lease afforded him attorney fees even in the event summary

judgment was granted in favor of Tenant as the defaulting party.

He has also failed to argue an exception to the preservation rule.

We therefore do not address the issue on appeal.

12. We are perplexed by Landlord’s argument that the remedy

he pursued under the Lease—either that Tenant pay $30,000 and

evict Subtenant to cure the breach or vacate the premises and

pay the rent due for the remainder of the Lease, which Tenant

did—has not placed Landlord in the same position as Landlord

would have been in if Tenant never breached the Lease.

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Alexander v. Brown, 646 P.2d 692, 695 (Utah 1982).). He

asserts that “it is an undisputed material fact that [he] would

have agreed to the sublease if [Tenant] had paid [him] the

difference between [Tenant’s] rent and what [Tenant]

received from [Subtenant].” For example, Landlord claims he

deserves $4,000 per month for the months when Tenant was

required to pay $1,000 per month for rent under the Lease and

Subtenant was required to pay $5,000 per month for rent

under the Sublease. Landlord argues that, had the parties

entered into that agreement, he would have been paid the

excess rent he now seeks. Though this might be true, we do not

see how this legally entitles Landlord to the excess rent from the

Sublease without a provision in the Lease providing for

those damages. Instead, it appears Landlord is requesting

the court to enforce “an alternative benefit to the bargain”

than the agreement he reached with Tenant in the Lease based

on “something he might have contracted for under

different circumstances.” See Toll v. Tannenbaum, 982 F. Supp. 2d

541, 559 (E.D. Pa. 2013). As in Toll, this argument fails because it

is a request for equitable relief that “hinges on the existence of an

agreement.” See id. (quotation simplified). There was no

agreement to pay the difference between Tenant and Subtenant’s

rent and there is nothing in the record to suggest that Tenant

would have agreed to Landlord’s conditions for consenting to

the Sublease.

¶18 Because there is no Utah case law that has

addressed whether a landlord can recover excess rents

obtained by a tenant through a nonconforming sublease without

a provision allowing for such recovery, we requested

supplemental briefing from the parties to explain how other

jurisdictions have addressed this issue. Landlord has failed to

provide case law from any jurisdiction that has addressed

the issue with facts similar to this case that would support his

request for damages. He cites Long Building v. Buffalo Anthracite

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Coal Co., 74 N.Y.S.2d 281 (N.Y. Special Term 1947), 13 in which a

landlord sued a tenant for breach of lease for subletting a portion

13. Landlord also cites Theater Row Phase II Associates v. National

Recording Studios, Inc., 291 A.D.2d 172 (N.Y. App. Div. 2002). In

that case, the court stated, “We perceive no logical support for

the absolute rule relied upon by [the tenant] that damages for

breach of a covenant against unauthorized subletting may under

no circumstances include any of the rental fees collected by the

tenant from its subtenant.” Id. at 175. The court concluded that,

in that “particular instance[,] it [was] especially inappropriate”

to determine that excess rent was not a consequential damage of

an illegal sublease, “because the terms of the lease tend[ed] to

support [the landlord’s] right to claim entitlement to the excess

rents collected by the tenant from its subtenant beyond the

amount payable to the landlord.” Id. at 176. This was because

“the contract [gave] the landlord the option to sublease any

space the tenant propose[d] to sublease,” and it was therefore

“possible to infer that the parties intended to give the landlord

the right to any expected profits that could be derived from a

sublet.” Id.

Landlord’s supplemental brief uses this case to support a

new argument under a different provision of the Lease—

paragraph 22(C)(4)—for his ability to collect the excess rent

obtained under the Sublease. Landlord never argued in his

opening brief on appeal, let alone to the district court in

Landlord’s Motion for Summary Judgment, that

paragraph 22(C)(4) governs whether he is entitled to the

damages he seeks. It would be unfair to entertain this new

argument because Tenant did not have an opportunity to

respond. Cf. Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903

(explaining that the requirement that “an appellant’s reply brief

shall be limited to answering any new matter set forth in the

opposing brief” is “rooted in considerations of fairness” because

“if new issues could be raised in a reply brief, the appellee

(continued…)

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of the property without the landlord’s consent. Id. at 282. The

landlord claimed he had “no adequate remedy at law, and,

therefore, demand[ed] judgment for an accounting for the sums

of money received by the [tenant] from the subtenant.” Id. But

the court explained that “[i]t is well settled that where an

adequate remedy at law is provided, the reason for granting

equitable relief disappears[,] and if an equitable action does not

lie, for the reason that the plaintiff has an adequate remedy at

law, the defendant may, before answer, move to dismiss the

complaint upon that ground.” Id. (quotation simplified).

¶19 Here, Landlord not only had an adequate remedy at law

explicitly provided for under the Lease, he also pursued that

remedy, and Tenant complied. Landlord first sent a notice to

(…continued)

would have no opportunity to respond to those arguments”

(quotation simplified)). We conclude this requirement applies

equally to new arguments raised in a supplemental brief that

responds to the court’s request for case law that supports the

arguments already made by the appellant. Cf. id. (“It is well

settled that issues raised by an appellant in the reply brief that

were not presented in the opening brief are considered waived

and will not be considered by the appellate court.” (quotation

simplified)); see also 4 C.J.S. Appeal & Error § 737 (2018)

(“Ordinarily only such points as are made and relied on in the

original briefs will be considered by the reviewing court in

disposing of the case, and supplemental, additional, or amended

briefs setting up errors not specified in the original briefs cannot

be filed without leave of court or consent of the opposite party,

except to the extent that the assignments of error suggest

fundamental error.” (quotation simplified)). We also note, with

some irony, that Landlord filed a motion to strike Tenant’s

supplemental brief for this exact reason, requiring Tenant to

respond to the motion.

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Gardiner v. Anderson

Tenant to cure the default by paying $30,000 and evicting

Subtenant. When Tenant did not comply, Landlord sent another

notice stating: “Because you did not cure the default . . . I hereby

exercise my right, pursuant to ¶ 22(C)(1) of the Lease, to

terminate the Lease and hereby notify you that the Lease is

terminated. Pursuant to ¶ 22(C)(1) of the Lease, you must

‘surrender possession of the premises immediately.’”

¶20 Because Landlord pursued an adequate remedy at law for

Tenant’s breach, because the Lease did not provide for excess

rent as damages for a nonconforming sublease, and because

Landlord has not articulated any means by which he was

actually damaged or injured by the Sublease, we conclude that

Landlord’s claim fails as a matter of law. We therefore affirm the

district court’s grant of summary judgment in favor of Tenant

and the denial of Landlord’s motion for summary judgment. 14

14. Landlord argues that, although Tenant never claimed to have

cured the breach by paying Landlord the excess rent obtained

under the Sublease, the “district court erred as a matter of law”

when it “nonetheless concluded, without citing any authority,

that because the ‘lease agreement does not provide for damages,’

[Tenant] was entitled to summary judgment.” Landlord’s entire

argument below with respect to damages resulting from the

breach of the Lease amounted to three paragraphs in which he

(1) restated the sublease provision and the notice to cure

provision of the Lease; (2) included his own statement that he

would have given consent to a sublease based on the condition

that he receive the excess rent from the sublease; and

(3) provided two quotes from cases that stated that “[i]t is

axiomatic in the law that for every wrong there is a remedy,”

Kramer v. Pixton, 268 P. 1029, 1032 (Utah 1928), and “[d]amages

are properly measured by the amount necessary to place the

nonbreaching party in as good a position as if the contract had

(continued…)

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Gardiner v. Anderson

II. Attorney Fees

A. Motions to Strike

¶21 Tenant asserts on cross-appeal that the district court erred

in ordering Tenant to pay attorney fees for the Motions to Strike.

“Whether attorney fees are recoverable in an action is a question

of law, which we review for correctness.” Federated Capital Corp.

v. Haner, 2015 UT App 132, ¶ 9, 351 P.3d 816 (quotation

simplified). To the extent that the district court exercised its

discretion to award attorney fees under either statute or one of

the Utah Rules of Civil Procedure, we review its decision for an

abuse of discretion. See id. ¶¶ 9–10. Here, the court failed to

provide any findings of fact or conclusions of law to support the

award. It is unclear whether the fees were awarded under a

provision of the Lease, a statute, or one of the Utah Rules of Civil

Procedure. This is concerning, because Landlord never

requested attorney fees in either of his Motions to Strike. We

therefore remand to the district court to revisit whether attorney

(…continued)

been performed,” Alexander v. Brown, 646 P.2d 692, 695 (Utah

1982). First, the court was not required to support its decision

with legal authority that the Lease did not provide for the

damages Landlord sought, because Landlord did not direct the

court to any language in the Lease that provided for such

damages. Second, it was Landlord’s burden to provide an

argument and supporting legal authority to show that he was

entitled to summary judgment as a matter of law. See Utah R.

Civ. P. 56(a); id. R. 7(d)(1)(B). Similar to our requirements on

appeal that an appellant’s arguments must be adequately briefed

so as not to “dump the burden of argument and research” on the

court, it is not the district court’s burden to research and develop

arguments for a moving party and then rebut them. Cf. Johnson v.

Johnson, 2014 UT 21, ¶ 20, 330 P.3d 704.

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Gardiner v. Anderson

fees for the Motions to Strike are appropriate and, if so, to

supplement the order with findings of fact and conclusions of

law to support its decision.

B. Reciprocal Attorney Fees

¶22 Tenant further contends on cross-appeal that the district

court erred in denying attorney fees to Tenant as the prevailing

party.15 We agree.

¶23 Although we review whether an award of attorney fees is

appropriate for correctness, “we review certain related issues for

an abuse of discretion,” such as “the determination of which

party prevailed in a civil action.” Id. (quotation simplified).

¶24 Utah Code section 78B-5-826 provides that a court may

award costs and attorney fees to the prevailing party in a civil

action that is based upon a written contract and that written

contract “allow[s] at least one party to recover attorney fees.”

Utah Code Ann. § 78B-5-826 (LexisNexis 2012); see also Haner,

2015 UT App 132, ¶ 11 (“Under Utah’s reciprocal attorney fee

statute, courts may award attorney fees to the prevailing party of

a contract dispute so long as the contract provided for the award

of attorney fees to at least one of the parties[.]”). But see

15. Tenant also contends the district court erred in denying his

request for attorney fees as the prevailing party in an unlawful

detainer action, see Utah Code Ann. § 78B-6-811(5) (LexisNexis

Supp. 2017), and for filing the complaint and corresponding

motions in bad faith, see id. § 78B-5-825 (2012). Because we

conclude the court erred in determining that the reciprocal

attorney fee statute did not apply and remand for consideration

of whether Tenant should be awarded attorney fees for

successfully defending against the complaint and prevailing on

summary judgment, we decline to address the merits of these

arguments.

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Gardiner v. Anderson

Blackmore v. L & D Dev. Inc., 2016 UT App 198, ¶¶ 39–43, 382

P.3d 655 (explaining that a district court erred when relying on a

“prevailing party” standard where the contract included only

“defaulting party” language).

¶25 Here, the enforcement provision of the Lease provides

that the “defaulting party shall pay to the other party all costs

and expenses, including but not limited to, a reasonable

attorney’s fee including such fees on appeal, which the prevailing

party may incur in enforcing [the Lease] or in pursuing any

remedy allowed by law for breach hereof.” (Emphasis added.)

Although this language provides that the defaulting party must

pay the prevailing party, “Utah courts generally apply a

common sense flexible and reasoned approach to the

interpretation of contractual ‘prevailing party’ language.” See

Express Recovery Services Inc. v. Olson, 2017 UT App 71, ¶ 10, 397

P.3d 792 (quotation simplified) (quoting A.K. & R. Whipple

Plumbing & Heating v. Guy, 2004 UT 47, ¶ 14, 94 P.3d 270).

¶26 The district court determined that “the fact that

[Landlord] pursued damages against [Tenant] that were

ultimately unsuccessful” does not translate into an award of

attorney fees to Tenant because, “[a]s in Blackmore, ‘this

provision clearly provides that the party who defaults is liable

for attorney fees’ and it would be error for this Court to award

attorney fees by deeming [Tenant] as the prevailing party under

the reciprocal attorney fee statute.” (Quotation simplified.) We

disagree. In Blackmore, the contract provided only “defaulting

party” language and not “prevailing party” language. Here, the

Lease included both. And, under the circumstances of this case,

when “apply[ing] a common sense flexible and reasoned

approach to the interpretation of contractual ‘prevailing party’

language” of the Lease, Tenant could have received costs and

attorney fees as the prevailing party. See Express Recovery Services

Inc., 2017 UT App 71, ¶ 10; see also Hooban v. Unicity Int’l Inc.,

2012 UT 40, ¶ 12, 285 P.3d 766 (explaining that the reciprocal

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Gardiner v. Anderson

attorney fees statute “consists of a conditional if/then statement:

(a) If the provisions of a written contract allow at least one party

to recover attorney fees in a civil action based upon the contract,

(b) then a court may award attorney fees to either party that

prevails”). Tenant successfully defended against the complaint

and prevailed on summary judgment because Landlord was not

entitled to judgment either under the Lease or Utah law.

¶27 We conclude that the district court erred in determining

that the Lease did not trigger the reciprocal attorney fee statute,

because the enforcement provision of the Lease awarded

attorney fees to the prevailing party and Tenant prevailed

against Landlord’s complaint. See Hooban, 2012 UT 40, ¶ 12.

Although Tenant was the defaulting party, he had already cured

the default pursuant to the explicit requirements of the Lease by

the time Landlord filed the complaint, and Tenant was the

prevailing party in enforcing the Lease and defending against

Landlord’s claims under the unlawful detainer statute and

breach of contract. 16 We therefore remand to the district court to

16. We also take this opportunity to note that Landlord engaged

in a pattern of filing motions below and on appeal that appear to

be for purposes of delay or increasing the costs of litigation,

further supporting our conclusion that Tenant likely should have

been awarded attorney fees under the Lease as the prevailing

party. Landlord’s responses to Tenant’s motions, the Motions to

Strike below and on appeal, and Landlord’s motion to dismiss

the cross-appeal all claimed to be based on strict compliance

with the Utah Rules of Civil Procedure and the Utah Rules of

Appellate Procedure. We agree that compliance with the rules is

important, but the extent to which Landlord has attempted to

enforce them is not well taken. We agree with Tenant that on

numerous occasions, Landlord, through his attorney, has

“belittled” Tenant and filed “needless motions to strike” in an

attempt to “avoid . . . full briefing on the merits of the case.”

(continued…)

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Gardiner v. Anderson

(…continued)

Indeed, our review of the record shows that many of

these filings appeared to “harass [Tenant] or to cause

unnecessary delay or needless[ly] increase the cost of litigation.”

See Utah R. Civ. P. 11(b)(1); Utah R. App. P. 40(b)(1). For

example, Tenant filed a notice of supplemental authority with

the district court, informing the court of a recent opinion issued

by this court, Express Recovery Services Inc. v. Olson, 2017 UT App

71, 397 P.3d 792. In this notice, Tenant explained how Express

Recovery supported his claim for attorney fees as the prevailing

party in a contract case where the contract awards attorney fees

to the prevailing party. See id. ¶¶ 17–19 (concluding that a party

was the prevailing party below, vacating the district court’s

order denying that party’s request for attorney fees, and

remanding to the district court to determine reasonable attorney

fees). Tenant also attached to the notice a printed copy of the

case. Landlord filed a response, arguing that the court should

not consider the notice, because it did not comply with rule 7(i)

of the Utah Rules of Civil Procedure. Specifically, he argued:

Rule 7(i) provides in pertinent part that, when a

party files a notice of citation to supplemental

authority, that notice must state “the citation to the

authority the page of the motion or memorandum

or the point orally argued to which the authority

applies, and the reason the authority is relevant.”

[Tenant’s] notice does not state “the page of the motion

or memorandum to which the authority applies.” The

court should thus not consider [his] notice.

(Emphasis added.) (Quotation simplified.) It is obvious from the

language of the notice that Tenant was referring to his motion

requesting attorney fees as the prevailing party on summary

judgment. Therefore, the notice was sufficient for the purpose of

rule 7(i). Landlord’s response to the notice resulted in Tenant

filing a reply to the notice to rebut this argument. Landlord then

(continued…)

20170551-CA 23 2018 UT App 167

Gardiner v. Anderson

(…continued)

filed a motion to strike this reply, arguing that only the notice

and a response by the opposing party is permitted under rule

7(i) and “no other memorandum is permitted.” Landlord also

requested time at an upcoming hearing to address the issue.

Although the district court agreed with Landlord, we are

perplexed as to the reasoning because nothing in rule 7(i)

prohibits a reply under these circumstances. See Utah R. Civ. P.

7(i). We are unaware of any Utah case law that has addressed

this issue.

On appeal, Landlord filed a motion to dismiss Tenant’s

cross-appeal, arguing that Tenant’s docketing statement

included argument in violation of rule 9 of the Utah Rules of

Appellate Procedure. This court denied this motion to dismiss

because “[t]he docketing statement [was] sufficient to meet the

purposes stated in rule 9(a).” Landlord then filed a motion to

dismiss Tenant’s cross-appeal with respect to whether the court

erred in awarding attorney fees to Landlord on the Motions to

Strike, arguing the issue was moot because Tenant had already

paid those fees. We rejected that argument above, explaining

that Landlord failed to cite relevant case law in support of his

argument and that Utah case law specifically states that this type

of issue is not moot when the party objected on the record to the

award and paid the fees under protest. See supra note 10.

Landlord also filed a motion to strike Tenant’s supplemental

brief, yet, as we noted previously, Landlord’s supplemental brief

included the same errors that he claimed Tenant’s brief included.

See supra ¶ 18 & note 13. And in his reply brief on appeal,

Landlord argued that one of the facts Tenant had stated in his

response brief about an email from October 27, 2014, in which he

informed Landlord about a neighbor (Subtenant) who had

suffered a fire and needed to use the Warehouse, “not only [was]

not before the district court, but [was] an erroneous

characterization of the [email].” This fact was before the district

(continued…)

20170551-CA 24 2018 UT App 167

Gardiner v. Anderson

determine whether Tenant should be awarded attorney fees for

successfully defending against Landlord’s complaint.

¶28 Tenant has also requested attorney fees on appeal.

Generally, “when a party who received attorney fees below

prevails on appeal, the party is also entitled to fees reasonably

incurred on appeal.” Golden Meadows Props., Inc. v. Strand, 2010

UT App 258, ¶ 13, 241 P.3d 371 (quotation simplified). Although

Tenant was not awarded attorney fees below, “we have held that

such fees may have been warranted and remand for further

consideration of the issue.” See Kimball v. Kimball, 2009 UT App

233, ¶¶ 50–52, 217 P.3d 733 (holding that attorney fees may have

been warranted below and remanding to the district court for

factual findings to support an award of attorney fees to the

husband, but also concluding that the husband was not entitled

to attorney fees incurred on appeal because he did “not

substantially prevail on appeal”). We therefore conclude Tenant

is entitled to attorney fees incurred on appeal for substantially

prevailing on appeal. See id.

(…continued)

court, not only because it was supported in an exhibit to the

Verified Memorandum, but also because Landlord referred to it

in his own affidavit in support of his opposition to Tenant’s

Motion for Summary Judgment. And our review of that email

supports Tenant’s explanation that a neighbor suffered a fire and

would be using the Warehouse to “house supplies until he has

time to get his facility rebuilt” and that Tenant “just wanted to

let [Landlord] know of [his] intentions and use of the building in

order to maintain transparency.”

The record is replete with examples such as these and

many appear to have served to delay the proceedings, distract

the court from the merits of the issues, mislead this court on

appeal, and increase the costs of litigation. See Utah R. Civ. P.

11(b)(1); Utah R. App. P. 40(b)(1).

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CONCLUSION

¶29 We affirm the district court’s grant of summary judgment

in favor of Tenant because Landlord’s claim fails as a matter of

law. We reverse the district court’s conclusion that the Lease did

not trigger the reciprocal attorney fee statute and remand for the

court to determine whether Tenant should be awarded attorney

fees for successfully defending against Landlord’s complaint and

successfully enforcing the Lease. We further conclude that

Tenant is entitled to attorney fees on appeal, as well as on cross-

appeal, because he has substantially prevailed on appeal and

“we have held that such fees may have been warranted” below.

See Kimball, 2009 UT App 233, ¶¶ 50–52. We also remand for the

court to revisit its decision regarding the award of attorney fees

to Landlord for the Motions to Strike. If the court determines

that the award is appropriate, it must provide findings of fact

and conclusions of law to support its decision.

20170551-CA 26 2018 UT App 167