author: MORTENSEN, Judge:

text:
    Sam PINO, Jeanne R. Thomas, Todd Palmer, and Jodie Palmer, Appellants, v. ENTITY #4812420-0140, Appellee.
    No. 20160294-CA
    Court of Appeals of Utah.
    Filed May 2, 2019
    Thomas N. Crowther, Salt Lake City, Bret J. Crowther, Sandy, Matthew S. Brahana, and Christopher Bond, Salt Lake City, Attorneys for Appellants
    J. Craig Smith and Kathryn J. Steffey, Salt Lake City, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Rather than drawing from their reservoir of cooperative experience, the users of a water well dispute how their mutual association should continue. A nonprofit water corporation failed to renew its registration and was administratively dissolved. A group of shareholders (Appellants) contended that, upon dissolution, the corporation's articles of incorporation and bylaws required its assets to be liquidated and the proceeds distributed to the corporation's shareholders. Appellants claim that the trial court erred in granting summary judgment in favor of the corporation when it determined that the corporation properly distributed its assets to a successor corporation. We affirm.

BACKGROUND

¶2 In 1997, a group of lot owners in the Brighton Estates Subdivision in Wasatch County entered into an agreement to drill a well to provide water to the subdivision. In 2000, the group formed a nonprofit corporation, Entity #4812420-0140, commonly known as The Well Corporation (TWC 2000), to own, finance, and oversee the installation of a culinary water distribution system and thereafter to own and operate the well and water distribution system. The well was drilled on land owned by the Ault Family Trust (Trust) and used for the stated purpose.

¶3 In 2007, Michael Ault, as a representative and agent of the Trust, was elected to TWC 2000's board of directors. And in November 2008, the Trust granted an easement to TWC 2000 to provide access for the operation and maintenance of the water well.

¶4 In December 2010, while Ault was still serving on the board, TWC 2000's registration with the Utah Division of Corporations and Commercial Code (Division) expired and was not renewed. In February 2012, a new board of directors (Directors) was elected, but it was not aware of TWC 2000's expired corporate status. The Directors discovered the expired status more than two years after TWC 2000's registration had expired.

¶5 As a result, in February 2013, the Directors formed The Well Corporation 2013 (TWC 2013) to function in the place of TWC 2000 and receive the assets and liabilities of TWC 2000. In October 2013, TWC 2000 executed an assignment (2013 Assignment) transferring all of its assets and obligations to TWC 2013 so that TWC 2000's shareholders could continue to receive water from the well. In May 2014, Appellants, who consist of a group of dissenting shareholders, commenced this action against TWC 2000 in the trial court seeking, among other relief, confirmation of TWC 2000's dissolution, liquidation of TWC 2000's assets, return of such assets to TWC 2000's shareholders, and the return of the easement to the Trust.

¶6 In August 2014, the Division reinstated TWC 2000, and the two companies rescinded the 2013 Assignment, leaving all the assets in TWC 2000's ownership. In September 2014, TWC 2000 held a shareholder meeting, at which a majority of TWC 2000's shares were represented, and ninety-five percent of those shares present voted to ratify the Directors' actions in (1) forming TWC 2013 to act as a successor corporation and (2) causing TWC 2000 to be reinstated.

¶7 Appellants then filed an objection with the Division to TWC 2000's reinstatement, and in October 2014, the Division placed TWC 2000 "in pending status awaiting the outcome of the litigation." In response, TWC 2000 and TWC 2013 enacted a conditional recession agreement providing that the 2013 Assignment would remain effective until TWC 2000 was restored to active status by the Division.

¶8 In the present proceeding, the trial court considered but rejected Appellants' arguments, granted TWC 2000's motion for summary judgment, and denied Appellants' cross-motion for summary judgment, concluding that "Utah law does not require a post-dissolution distribution to comply with the dissolved corporation's Articles of Incorporation and Bylaws," (Articles) and, even if the law "did require [TWC 2000] to distribute its assets after dissolution in accordance with its [Articles], such a requirement has been satisfied in this case." Appellants appeal the judgment of the trial court.

ISSUES AND STANDARDS OF REVIEW

¶9 The first issue on appeal is whether the Utah Revised Nonprofit Corporation Act (Act), see Utah Code Ann. §§ 16-6a-102 to -1702, authorized the transfer of TWC 2000's assets and liabilities to a successor corporation or whether the assets were required to be distributed in accord with TWC 2000's Articles. The second issue on appeal is whether an administratively dissolved corporation can be reinstated by the Division even if the corporation failed to make an application for reinstatement within two years after its dissolution.

¶10 Both issues involve questions of statutory interpretation and the standard for granting summary judgment. "We review questions of statutory interpretation for correctness, affording no deference to the [trial] court's legal conclusions." Grimm v. DxNA LLC , 2018 UT App 115, ¶ 14, 427 P.3d 571 (cleaned up). And "[w]e review a [trial] court's legal conclusions and grant or denial of summary judgment for correctness, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party." Rapoport v. Martin , 2018 UT App 163, ¶ 6, 432 P.3d 772.

ANALYSIS

I. Transfer of TWC 2000's Assets and Liabilities

¶11 The trial court ruled that TWC 2000's transfer of its assets and liabilities to TWC 2013 was proper under the Act. The trial court concluded that "Utah law does not require a post-dissolution distribution to comply with the dissolved corporation's [Articles]." Specifically, the trial court found that the Utah Code "expressly authorizes a nonprofit corporation to 'make distributions upon dissolution ... to another nonprofit corporation, including a nonprofit corporation organized to receive the assets of and function in place of the dissolved nonprofit corporation.' " (Quoting Utah Code Ann. § 16-6a-1302(2)(c).)

¶12 Appellants argue that the trial court erred by not giving effect to Article XII of TWC 2000's Articles, which states: "In the event of dissolution of [TWC 2000], each shareholder shall receive its proportionate share of [TWC 2000's] property and assets, including gains from the sale of appreciated assets, in proportion to the number of shares held." Appellants also note that the Act provides an alternative to the path taken by the court. Instead of distribution to a successor nonprofit corporation, distribution on dissolution of a nonprofit corporation may also be made "to its members if it is a mutual benefit corporation." Utah Code Ann. § 16-6a-1302(2)(b) (LexisNexis Supp. 2009). Appellants conclude by asserting that given the choices (namely, distributing the assets to a successor nonprofit corporation or to the shareholders), the court erred in choosing the first:

If there is a choice between two equally applicable contract alternatives,[ ] and if one alternative does not give effect to all terms in the contract and another alternative does so, the alternative giving effect to all contract terms must govern. The trial court erred by applying and giving effect to the statutory alternative allowing transfer of TWC 2000 assets to TWC 2013 in violation of [the Articles] instead of the alternative directing distribution of the TWC 2000 assets to its shareholders in conformity with [the Articles].

¶13 Appellants' argument fails because it relies on a non-existent conflict between the Articles and the statutory options upon dissolution laid out in Utah Code section 16-6a-1302(2). Rather, we conclude that the Directors complied with the statutory scheme and TWC 2000's Articles. See Olincy v. Merle Norman Cosmetics, Inc. , 200 Cal.App.2d 260, 19 Cal. Rptr. 387, 394 (1962) (stating that "where a by-law is reasonably susceptible of different constructions, one in harmony and the other in conflict with a statute, the former construction will be adopted" (cleaned up)); see also Kahn v. Bank of St. Joseph , 70 Mo. 262, 270 (Mo. 1879) (rejecting a construction of a bylaw as "unreasonable" when such construction is "in conflict with, if not the letter, at least with the spirit of many of our statutory provisions relative to this subject"). We now explain how the Directors complied with both the statutory scheme and the Articles.

¶14 First, the Directors complied with the statutory requirements. The Act provides that "[a]uthorized distributions by a dissolved nonprofit corporation may be made by authorized officers or directors," Utah Code Ann. § 16-6a-1302(4), as follows: (1) "to a member that is a domestic or foreign nonprofit corporation"; (2) "to its members if it is a mutual benefit corporation"; (3) "to another nonprofit corporation, including a nonprofit corporation organized to receive the assets of and function in place of the dissolved nonprofit corporation"; and (4) "otherwise in conformity to this chapter [i.e., chapter 6a]," id. § 16-6a-1302(2). Under part 14, Dissolution, of chapter 6a, a dissolved nonprofit corporation may transfer "its assets as provided in or authorized by its articles of incorporation or bylaws." Id. § 16-6a-1405(1)(c). The Directors chose the third option when they assigned TWC 2000's assets and liabilities to TWC 2013.

¶15 Second, the Directors complied with the Articles by distributing the assets of TWC 2000 after its dissolution. The Articles specifically provide in Article XII that "[i]n the event of dissolution of [TWC 2000], each shareholder shall receive its proportionate share of [TWC 2000's] property and assets, including gains from the sale of appreciated assets, in proportion to the number of shares held." The Directors observed this requirement when they assigned the corporation's assets and liabilities to the successor corporation. We note that TWC 2013 was "organized to replace and serve as successor-in-interest to [TWC 2000] for the benefit of all of the shareholders of [TWC 2000]." Furthermore, TWC 2013's Amended Articles of Incorporation (Amended Articles) are identical in every material respect to TWC 2000's Articles, including all provisions regarding internal governance processes, voting rights, and determining shareholders and directors. And TWC 2013's Amended Articles provided for TWC 2000's shareholders to be issued shares in TWC 2013 once the new corporation filed its articles:

To ensure continued water availability and delivery to the [members holding shares in TWC 2000] in the event the Division ultimately rescinds [TWC 2000's] reinstatement, [TWC 2000] has determined that it is necessary and appropriate for the Board of Directors of [TWC 2013] to cause these Articles of Amendment to be filed in order to ensure that [TWC 2013] conforms in all respects to the structure and operation of [TWC 2000], such that, upon any dissolution of [TWC 2000], [TWC 2013] shall be the successor-in-interest to [TWC 2000] and will be legally authorized to continue operations pursuant to Utah Code Ann. § 16-6a-1405. Upon the filing of these Amendments, certificates will be issued for the benefit of all eligible prospective Members.

(Emphases added.) TWC 2013's Amended Articles were subsequently filed on November 19, 2014.

¶16 Appellants contend that after TWC 2000 was dissolved, "shareholders did not receive the assets," rather "[t]he assets were transferred to TWC 2013." Appellants argue that the only way to give effect to Article XII

is the "distribution of assets to TWC 2000's shareholders instead of the alternative of transfer of the assets to TWC 2013." But Appellants fail to acknowledge a key fact: TWC 2013's Amended Articles provided that TWC 2000's shareholders be issued shares of TWC 2013. Therefore, in transferring assets to TWC 2013 and investing TWC 2000's shareholders with shares in TWC 2013, the Directors gave Appellants precisely what they requested, namely, a proportionate share of TWC 2000's post-dissolution assets. Appellants appear to prefer that TWC 2000's assets be liquidated, resulting in a monetary distribution. But that is not what Article XII called for upon dissolution. TWC 2013's Amended Articles provided TWC 2000's shareholders a proportionate share of the corporation's assets, albeit in the form of shares in the successor corporation.

¶17 Thus, we conclude that the Directors complied with the Act and the Articles when they distributed TWC 2000's assets in the form of shares in TWC 2013.

II. Reinstatement of an Administratively Dissolved Corporation

¶18 Appellants contend that an administratively dissolved corporation cannot be reinstated by the Division if the corporation fails to make an application for reinstatement within two years after its dissolution. They argue that "the trial court should have removed TWC 2000's pending status and ruled that it is irrevocably dissolved."

¶19 We decline to address this issue because Appellants failed to join the Division as a party to the proceedings below in accordance with rule 19 of the Utah Rules of Civil Procedure. Consequently, the trial court had no authority to enter directives binding on the Division. See Hiltsley v. Ryder , 738 P.2d 1024, 1025 (Utah 1987) ("Courts can generally make a legally binding adjudication only between the parties actually joined in the action."); see also R.M.S. Corp. v. Baldwin , 576 P.2d 881, 883 (Utah 1978) ("[N]o judgment was rendered against the corporation, and no judgment could have been so entered for the reason that the corporation was not before the court.").

¶20 Thus, we decline to address the issue of whether it was appropriate for the Division to reinstate TWC 2000 more than two years after its registration expired because the Division is not a party to this case and such a determination would result in the issuance of an advisory opinion.

CONCLUSION

¶21 We conclude that the trial court correctly granted summary judgment when it determined that the Directors properly transferred assets from TWC 2000 to TWC 2013. And because the Division was not joined as a party to the proceedings below, we decline to address whether it had the authority to reinstate TWC 2000 after more than two years had passed since the corporation's expiration.

      Appellants rightly point out that TWC 2000 is a "mutual benefit corporation" because it is a nonprofit corporation "that issues shares of stock to its members evidencing a right to receive distribution of water or otherwise representing property rights." Utah Code Ann. § 16-6a-102(33)(a) (LexisNexis Supp. 2009).

      Citing Okelberry v. West Daniels Land Ass'n , Appellants contend that Utah Code section 16-6a-302 and the Articles are part of the same contract between TWC 2000 and its shareholders. See 2005 UT App 327, ¶ 14, 120 P.3d 34 (stating that "the bylaws of a corporation, together with the articles of incorporation, the statute under which it was incorporated, and the member's application, constitute a contract between the member and the corporation" (cleaned up)).

      We note that "[t]he statutes under which a corporation is formed constitute the preeminent authority governing the corporation, making other sources of corporate authority and governance-e.g., resolutions, bylaws, and declarations-inferior to and subject to the controlling statutes." Park West Condo. Ass'n v. Deppe , 2006 UT App 507, ¶ 20, 153 P.3d 821 ; see also Utah Code Ann. § 16-6a-202(1)(g) (LexisNexis Supp. 2012) ("The articles of incorporation [of a nonprofit corporation] shall set forth ... provisions not inconsistent with law regarding the distribution of assets on dissolution."). In addition, TWC 2000's Articles state that the corporation was organized to "[d]o any and all acts and things, and to have and exercise all rights and powers from time to time granted to a corporation by law, including, without limitation, those powers described in the Utah Nonprofit Corporation and Cooperative Act, § 16-6-1 et seq. , U.C.A., (1953), as amended." In 2001, the Act replaced the Utah Nonprofit Corporation and Cooperative Act. See Bruce L. Olson, Utah Revised Nonprofit Corporation Act , 14 Utah B.J. 17, 17 (June/July 2001). Thus, insofar as provisions in TWC 2000's Articles regarding the distribution of assets after dissolution conflict with the Act, the Act governs because it enjoys preeminent authority under the Utah Code and TWC 2000's Articles.

      Furthermore, the Act states that "[d]issolution of a nonprofit corporation does not ... transfer title to the nonprofit corporation's property including title to water rights, water conveyance facilities, or other assets of a nonprofit corporation organized to divert or distribute water to its members." Utah Code Ann. § 16-6a-1405(3)(a) (LexisNexis Supp. 2009). Thus, the plain meaning of the statute is that the assets of a nonprofit water corporation do not automatically revert to the shareholders on dissolution. Rather, the Act makes clear that such assets of a dissolved water corporation are to be distributed in a deliberate fashion in accord with one of the four options identified in sections 16-6a-1302(2) and 16-6a-1405(1)(c).

      Appellants also argue that because the proper notice procedure was not followed, the distribution of assets was invalid. But this argument is without merit. As the trial court explained, "[E]ven if Utah Code [section] 16-6a-1302(3) did require [TWC 2000] to distribute its assets after dissolution in accordance with its [Articles], such a requirement has been satisfied in this case." The court noted that the Directors delivered written notice, which referred to the legal challenge faced by TWC 2000, of the shareholders' meeting. The court further noted that the notice met the requirements of TWC 2000's bylaws, which stated that notice be given to shareholders "either personally, or by mailing a copy of the notice, ... and by compliance with all conditions as provided in the Bylaws or rules and regulations adopted by the Board of Directors." Appellants argue that the notice TWC 2000 gave to shareholders was defective under Utah Code section 16-6a-1202 because it "did not give notice that ratification of transfer of all of TWC 2000's assets to TWC 2013 would be submitted to a vote at the meeting." But the provisions of section 16-6a-1202 do not apply here because "[a] transaction that constitutes a distribution is governed by Part 13" of the Act, which deals with distributions upon dissolution, and not by section 1202. Utah Code Ann. § 16-6a-1202(8) (LexisNexis 2009). Because part 13 of the Act has no notice requirements, see id. §§ 16-6a-1301 to -1302, the Directors were required to comply only with the notice requirements found in TWC 2000's Articles.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Allan BRUUN, Appellant.
    No. 20160466-CA
    Court of Appeals of Utah.
    Filed May 9, 2019
    Clifton W. Thompson, Attorney for Appellant
    Sean D. Reyes, Jeffrey S. Gray, and Jacob S. Taylor, Salt Lake City, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
    Opinion
   ORME, Judge:

¶1 This case presents the question of whether a civil settlement between a victim and a defendant, entered into prior to entry of an order of complete restitution in a related criminal case, precludes the victim from enforcing that restitution order once it is entered as a judgment on the civil docket. In light of the plain language of, and the well-recognized purposes for, the Crime Victims Restitution Act, we conclude that a prior civil settlement does not preclude enforcement of a restitution judgment provided that the victim does not obtain a double recovery.

BACKGROUND

¶2 Following a jury trial in 2013, Allan Bruun and James Diderickson (collectively, Defendants) were convicted of twelve counts of theft and one count of engaging in a pattern of unlawful activity, growing out of their criminal conduct perpetrated against Utah County landowners (Victims). In 2007, Defendants and Victims entered into a joint business venture to develop 29 acres of land in Saratoga Springs (the Property) that Victims had purchased decades earlier to fund their retirement. Victims partnered with an entity owned by Defendants, Equity Partners LLC, to form Tivoli Properties LLC, whose purpose was to "carry[ ] on the business of acquiring, managing, improving, subdividing, developing, leasing and selling the Property or any other enterprise that members may mutually agree upon." Victims held a 25% interest in Tivoli, and Equity Partners owned the remainder.

¶3 As part of the joint venture, Victims also agreed to sell the Property to Equity Partners for $ 3.5 million, with $ 750,000 due as a down payment. Prior to closing on the sale of the Property, Defendants informed Victims that they were unable to make the $ 750,000 down payment and convinced Victims to take out a loan secured by the Property for that amount to enable commencement of the Property's development. Approximately $ 350,000 of the loan proceeds was used to pay off existing mortgages and taxes on the Property, and the remaining $ 400,000 was transferred to Tivoli's business checking account, whereupon that sum became the company's only operating funds.

¶4 Approximately six months later, Victims discovered that Defendants had written a host of checks on Tivoli's account that did not appear to be related to the development of the Property. Following Victims' complaints and ensuing negotiations, Victims and Defendants entered into a settlement agreement (the Settlement Agreement) in which Defendants agreed to transfer title to all but .6 acres of the Property back to Victims. Defendants had already sold the remaining .6 acres to the Utah Department of Transportation, but they agreed to also transfer the proceeds from that sale, $ 174,000, to Victims. In exchange, Victims paid Equity Partners $ 25,000 and agreed to "waive any claim or right to assert any cause of action" against Defendants related to their management of Tivoli. The checks that later gave rise to the theft charges against Defendants were identified in the Settlement Agreement, which recited that Victims released any claims they had concerning the checks.

¶5 Two years later, the State charged Defendants with 28 counts of theft and one count of engaging in a pattern of unlawful activity for writing unauthorized checks on Tivoli's account. A jury determined that 12 of the 28 checks were unauthorized by Tivoli's operating agreement and convicted Defendants on twelve counts of theft and one count of engaging in a pattern of unlawful activity. As part of their sentence, the district court ordered Defendants to jointly and severally pay Victims $ 189,574.33 in complete and court-ordered restitution-the aggregate sum of the 12 checks underlying the theft convictions.

¶6 Defendants previously appealed their convictions and the district court's order of restitution, resulting in our decision in State v. Bruun (Bruun I ), 2017 UT App 182, 405 P.3d 905. In challenging the restitution order, Defendants argued (1) "that the release of claims in the Settlement [Agreement], signed by both Defendants and the Victims, precluded restitution as a matter of law"; and (2) "that the consideration the Victims received as part of the Settlement [Agreement] should have been taken into account in the court's restitution order." Id. ¶ 80. We were persuaded by neither argument and affirmed the restitution order. Id. ¶ 99.

¶7 Relying on our Supreme Court's decision in State v. Laycock , 2009 UT 53, 214 P.3d 104, we determined Defendants' first argument to be unavailing because the State was not a party to the Settlement Agreement, and therefore "the State's interests [in seeking restitution] were not foreclosed by the release." Bruun I , 2017 UT App 182, ¶ 86, 405 P.3d 905. And regarding Defendants' second argument, we held it was not an abuse of discretion for the district court to determine that evidence of the Property's value was too speculative and unreliable to conclude that return of the Property necessarily compensated Victims in full for the unauthorized checks, id. ¶ 98, and that "Defendants ha[d] also failed to persuade us that the trial court's actual restitution award amounted to a double recovery," id. ¶ 94.

¶8 During the pendency of Bruun I , Defendants moved the district court for an order of satisfaction of judgment pursuant to rule 58B of the Utah Rules of Civil Procedure. They argued that because the Settlement Agreement referenced the 12 checks that were the subject of the restitution order and included an express release of Victims' claims concerning the same, they were entitled to an order of satisfaction of judgment once the complete restitution order was entered as a judgment on the civil docket. See Utah Code Ann. § 77-38a-401(1) (LexisNexis Supp. 2018). After recognizing that Defendants' motion involved "issues of law which are of first impression," the district court denied the motion. The court's denial of this motion is the target of Defendants' current appeal.

ISSUE AND STANDARD OF REVIEW

¶9 Whether a prior settlement agreement can satisfy an order of complete restitution after the restitution order is entered as a judgment on the civil docket presents a question of law, which we review for correctness. See Pilot v. Hill , 2019 UT 10, ¶ 9, 437 P.3d 362 ("[P]ure question[s] of law" are reviewed "for correctness.").

ANALYSIS

¶10 The Crime Victims Restitution Act (the Act) requires a district court to "determine complete restitution and court-ordered restitution,"

Utah Code Ann. § 77-38a-302(2) (LexisNexis 2017), and to subsequently "enter an order of complete restitution ... on the civil judgment docket," id. § 77-38a-401(1) (Supp. 2018). Such an order "shall be considered a legal judgment, enforceable under the Utah Rules of Civil Procedure," thereby affording the victim or the Department of Corrections the rights to "enforce the restitution order as judgment creditor under [those same rules]." Id. § 77-38a-401(2) (emphasis added).

¶11 Citing this provision of the Act and relying on rule 58B(b) of the Utah Rules of Civil Procedure, Defendants argue that once the complete restitution order was reduced to a civil judgment, they were entitled to an order of satisfaction of that judgment. See Utah R. Civ. P. 58B(b) (providing that a district court "may, upon motion and satisfactory proof, enter an order declaring [a] judgment satisfied"). Specifically, Defendants contend that their compliance with the terms of the Settlement Agreement-the one they and Victims executed two years prior to the commencement of criminal proceedings and which referenced the 12 checks Defendants wrote on the Tivoli account-served as "satisfactory proof" that the judgment had been satisfied. Defendants assert that through their efforts to re-zone the Property, its value increased between the time Victims sold it to Equity Partners and the time it was conveyed back to Victims pursuant to the Settlement Agreement, and that this increase in value was sufficient to satisfy the complete restitution amount of $ 189,574.33.

¶12 Defendants correctly state that upon agreement between the parties, a judgment debtor's obligation to the judgment creditor may be satisfied under rule 58B(b) of the Utah Rules of Civil Procedure by means other than direct monetary payment. See Red Bridge Capital LLC v. Dos Lagos LLC , 2016 UT App 162, ¶ 10 n.2, 381 P.3d 1147 (stating that rule 58B(b) "require[s] only 'satisfactory proof' that a judgment has been satisfied," and "[w]here [a] judgment debtor can demonstrate that ... the parties had agreed to satisfaction by means other than simple payment, evidence that the judgment debtor met its obligations under the parties' agreement may provide satisfactory proof that the judgment has been satisfied"). But that rule contemplates agreement between the parties after judgment is entered. We are still left with the task of determining whether the Act permits a settlement entered into prior to entry of a restitution judgment on the civil docket to satisfy that judgment. See infra ¶ 16.

¶13 In support of their position, Defendants cite State v. Laycock , 2009 UT 53, 214 P.3d 104. In Laycock , our Supreme Court addressed the issue of whether a civil settlement between a defendant and a victim barred the imposition of restitution in a subsequent criminal action arising from the same incident. See id. ¶ 12. The Court determined that such civil settlements did not bar the imposition of restitution by the district court because the controversy between the State and the defendant was not finished and the twin purposes of restitution, i.e., to compensate the victim and to act as a deterrent, had not been satisfied. See id. ¶ 18. But, without expressly deciding, the Court concluded by musing as to the effect the settlement agreement would have on the order of complete restitution once it was entered as a judgment on the civil docket, stating:

In the context of this case, once [the district court] completes the task assigned to [it] on remand-to determine complete restitution-that sum will be reduced to a civil judgment, a judgment that may only be enforced through the Utah Rules of Civil Procedure. At that point, a serious question will arise over whether [the victim] may execute on her judgment when she has released [the defendant] from all of her claims against him. While this question is one we need not answer today, we likely will be required to answer it someday.
It would appear that under our statutory scheme, the rationale we used to reject [the defendant's] mootness claim may lose much of its persuasive force after a civil judgment is entered .

Id. ¶ 33 (emphasis added). Defendants rely on the emphasized language to support the contention that the discharge of their responsibilities under the Settlement Agreement likewise satisfied the civil judgment entered against them at the conclusion of their criminal case.

¶14 But, as Defendants acknowledge, the comments shared by our Supreme Court amount to nonbinding dicta. Specifically, because the Court merely speculated on the legal issue and expressly reserved it for future resolution, the comments to which Defendants direct our attention represent no more than "a remark or expression of opinion that [the C]ourt uttered as an aside," rendering it nonbinding obiter dicta. See Ortega v. Ridgewood Estates LLC , 2016 UT App 131, ¶ 14 n.4, 379 P.3d 18 (quotation simplified). Cf. State v. Ogden , 2018 UT 8, ¶ 42, 416 P.3d 1132 (stating that another of its observations in Laycock -"that matters of negligence, proximate cause and the amount of resulting damages are best left to civil litigation"-was not an issue the Court was asked to address in Laycock , rendering the statement dicta, and explaining that, as a result, "that statement should not be read to suggest that [the Court] had concluded the [Act] requires something other than proximate causation" when determining the complete restitution amount) (quotation simplified). And having considered the merits of the parties' arguments, we now conclude that prior settlement agreements that do not result in a double recovery by the victim cannot preclude enforcement of restitution judgments.

¶15 We begin by turning to the plain language of the Act. See Ogden , 2018 UT 8, ¶ 31, 416 P.3d 1132. Section 401 provides that after the district court enters an order of complete restitution on the civil docket, "[t]he order shall be considered a legal judgment, enforceable under the Utah Rules of Civil Procedure." Utah Code Ann. § 77-38a-401(2) (LexisNexis Supp. 2018) (emphasis added). The Legislature's choice of the word "enforceable"-as opposed to a more neutral word, such as "governed"-provides guidance to our resolution of this issue. "Enforceable" is an adjective that stems from the verb "to enforce," which means "to compel obedience to [something]" or "[l]oosely, to compel a person to pay damages." Enforce , Black's Law Dictionary 608 (9th ed. 2009). See also Enforce , New Oxford American Dictionary 574 (3d ed. 2010) (defining "enforce" as the act of "compel[ling] observance of or compliance with [something]" or "caus[ing] (something) to happen by necessity or force"); Enforcement , Black's Law Dictionary 608 (9th ed. 2009) (defining "enforcement" as "[t]he act or process of compelling compliance"). The Legislature's choice of the word "enforceable" therefore emphasizes the victim's right to seek to collect on the civil judgment under the Utah Rules of Civil Procedure rather than recognizing the defendant's right to seek relief from the judgment under the rules or to have them more generally apply.

¶16 And insofar as the Act directs us to the Utah Rules of Civil Procedure, those rules do not contemplate the situation presented by this case. Although parties in a civil proceeding may certainly enter into settlement agreements after a plaintiff has obtained a judgment against a defendant, see Utah R. Civ. P. 58B(b), a settlement between the parties prior to formal, judicial resolution of a civil case would result in dismissal of the case should an action thereafter be brought and should the defendant choose to raise settlement as an affirmative defense, see id. R. 8(c) (including "accord and satisfaction" and "release" as among the available affirmative defenses), thereby necessarily foreclosing an entry of judgment. The present case involves both an executed settlement agreement that expressly referenced the 12 checks that formed the basis of the restitution award and the subsequent entry of judgment for the complete restitution amount. Other than in the restitution context, which represents "a unique animal, existing at the convergence of the civil and criminal worlds," State v. Mooers , 2017 UT 36, ¶ 7, 424 P.3d 1, we are hard-pressed to envision in the civil context a situation that encompasses a prior settlement agreement that has been fully satisfied and a subsequent civil judgment, both of which purport to fully resolve the same claims between the same parties. As such, the Utah Rules of Civil Procedure provide little assistance to our resolution of this case.

¶17 Admittedly, although the Act's plain language provides some guidance, such guidance is limited and the Act is largely silent on the particular issue presented in this case. "When a statute is silent regarding particular circumstances and we determine that such a gap was not the intent of the legislature, we must determine the best rule of law to ensure that the statute is applied uniformly." Cox v. Laycock , 2015 UT 20, ¶ 42, 345 P.3d 689 (quotation simplified). In doing so, we must "analyze the act in its entirety and harmonize its provisions in accordance with the legislative intent and purpose." Id. (quotation simplified). See also Ogden , 2018 UT 8, ¶ 31, 416 P.3d 1132 ("When interpreting a statute, it is axiomatic that this court's primary goal is to give effect to the legislature's intent in light of the purpose that the statute was meant to achieve.") (quotation simplified).

¶18 The Act was enacted to serve two well-recognized purposes. The first is "to compensate the victim for pecuniary damages." State v. Laycock , 2009 UT 53, ¶ 18, 214 P.3d 104. See State v. England , 2017 UT App 170, ¶ 13, 405 P.3d 848 ("The well-settled remedial purpose of our restitution statute is to compensate victims for the harm caused by a defendant and to spare victims the time, expense, and emotional difficulties of separate civil litigation to recover their damages from the defendant.") (quotation simplified). However, in promoting that purpose, courts should limit restitution "to that amount which is necessary to compensate a victim for losses caused by the defendant" and be careful not "to grant a windfall to the victim." England , 2017 UT App 170, ¶ 15, 405 P.3d 848 (quotation simplified). And the second purpose, "as a part of a criminal sanction, is to rehabilitate and deter the defendant, and others, from future illegal behavior." Laycock , 2009 UT 53, ¶ 18, 214 P.3d 104. We conclude that neither purpose is served by permitting a prior settlement agreement that does not fully compensate a victim for the pecuniary damages caused by a defendant to satisfy a subsequent judgment for complete restitution.

¶19 In Laycock , our Supreme Court relied heavily on the dual purposes of the Act in holding that a prior settlement agreement between defendant and victim could not foreclose the imposition of complete restitution by the district court. See id. (rejecting the defendant's argument of mootness "because the controversy between the parties [was] not over and the dual purposes of restitution ha[d] not been fulfilled") (quotation simplified). And we struggle to see how the dual purposes of restitution would be fulfilled by the entry of an order of complete restitution as a judgment on the civil docket if it were to immediately be deemed satisfied by an earlier settlement that compensated the victim for a sum less than the victim's total loss. Quite the contrary, any compensatory, rehabilitative, or deterrent aims of the Act would be only symbolically met, if not undermined, by such a scheme.

¶20 It must be noted that settlement agreements, typically the result of negotiation and compromise, often will not fully compensate victims for the pecuniary damages suffered by them, which complete restitution, by its very terms, is intended to do. See Utah Code Ann. § 77-38a-302(2)(a) (LexisNexis 2017) (" 'Complete restitution' means restitution necessary to compensate a victim for all losses caused by the defendant.") (emphasis added). As the State points out, "[p]arties settle for many reasons," including to avoid the cost and unpredictability of litigation, "to achieve the peace of mind that comes with finality sooner, rather than later," and to avoid the additional emotional toll a victim would potentially suffer by reason of ongoing civil litigation. As a result, victims might choose to cut their losses and agree to settlements that do not fully compensate them for their damages, thereby defeating the first purpose of the Act.

¶21 The second purpose of the Act-that of rehabilitation and deterrence-is likewise not fulfilled by Defendants' interpretation of the Act. "[O]rders of complete restitution, though technically entered on the civil docket, flow entirely from the criminal cases that give rise to them; they are not separate civil cases with a life outside of the criminal case." State v. Mooers , 2017 UT 36, ¶ 17, 424 P.3d 1. And by permitting a prior settlement agreement for less than the victims' total pecuniary loss to satisfy a complete restitution judgment, defendants could effectively avoid the full consequences of their crimes by cajoling vulnerable victims into entering into unfavorable settlement agreements prior to the district court's restitution determination. And given the purposes of the Act, it is highly unlikely that the Legislature intended such an outcome.

¶22 Based on the language of the Act providing that victims can enforce their restitution judgments pursuant to the Utah Rules of Civil Procedure, the lack of guidance from the rules themselves, and the well-recognized purposes the Act was enacted to promote, we hold that the Settlement Agreement will offset the district court's complete restitution award only to the extent that the settlement demonstrably compensated Victims for the pecuniary losses occasioned by the thefts of which Defendants were convicted. It is insufficient that the Settlement Agreement expressly referenced the 12 checks that provided the basis for Defendants' criminal convictions and restitution order. Even though the Settlement Agreement contained a purported release of any claims Victims had resulting from the checks, the Settlement Agreement must have actually compensated them for the pecuniary losses they suffered as a result of those unauthorized checks. As such, we next determine whether and to what extent the Settlement Agreement did so.

¶23 In their earlier appeal, Defendants argued that the Settlement Agreement and the restitution order amounted to double recovery for Victims. See Bruun I , 2017 UT App 182, ¶ 87, 405 P.3d 905. We held that the district court did not abuse its discretion in determining that evidence of the Property's value was too speculative and unreliable to form the basis for restitution. See id. ¶¶ 91-95, 98. See also State v. Ogden , 2018 UT 8, ¶ 52, 416 P.3d 1132 ("A trial court's restitution award must rely on a sufficient evidentiary basis. ... [A]n award of damages based only on speculation cannot be upheld.") (quotation simplified). As such, "Defendants ha[d] ... failed to persuade us that the trial court's actual restitution award amounted to a double recovery." Bruun I , 2017 UT App 182, ¶ 94, 405 P.3d 905. In light of our prior determination that the Settlement Agreement and restitution judgment did not doubly compensate Victims, Defendants are not entitled to offset the judgment by any amount and are jointly and severally obligated to pay Victims the full restitution judgment in the amount of $ 189,574.33.

CONCLUSION

¶24 Having considered the language and purposes of the Crime Victims Restitution Act, we conclude that prior settlement agreements do not satisfy complete restitution judgments, except to the extent that the settlements and judgments would demonstrably result in double recovery. Because the Settlement Agreement Victims entered into with Defendants has not been shown to be duplicative of the restitution judgment, Defendants are not entitled to satisfaction of the judgment, partial or otherwise.

¶25 Affirmed.

      "On appeal, we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues raised on appeal." State v. Daniels , 2002 UT 2, ¶ 2, 40 P.3d 611.

      A more detailed account of the facts underlying Defendants' convictions is provided in our prior decision in this case. See State v. Bruun , 2017 UT App 182, ¶¶ 2-13, 405 P.3d 905.

      "Complete restitution is restitution necessary to compensate a victim for all losses caused by the defendant, taking into account all relevant facts," including those facts enumerated in Utah Code section 77-38a-302(5)(b). State v. Mooers , 2017 UT 36, ¶ 9, 424 P.3d 1 (emphasis added) (quotation simplified). In contrast, court-ordered restitution "is the restitution the court having criminal jurisdiction orders the defendant to pay as a part of the criminal sentence." Id. ¶ 10 (quotation simplified). In addition to considering the factors for complete restitution, district courts take the defendant's particular circumstances into consideration when determining the amount of court-ordered restitution. Id. ¶ 11. See also Utah Code Ann. § 77-38a-302(5)(c) (LexisNexis 2017) (listing the additional factors a district court must consider when determining court-ordered restitution). As a subset of complete restitution, court-ordered restitution must be either equal to or less than the complete restitution amount. See Mooers , 2017 UT 36, ¶¶ 11, 19 n.4, 424 P.3d 1.

      In contrast, unlike complete restitution orders that are enforceable as civil judgments, "a violation of court-ordered restitution subjects the defendant to criminal enforcement mechanisms such as contempt of court." Mooers , 2017 UT 36, ¶ 18 n.3, 424 P.3d 1.

      But as we will discuss infra , the district court expressly rejected this contention when determining the complete restitution amount, deeming the evidence presented regarding the pre- and post-settlement values of the Property to be too speculative.

      "Dicta normally comes in two varieties: obiter dicta and judicial dicta." Ortega v. Ridgewood Estates LLC , 2016 UT App 131, ¶ 14 n.4, 379 P.3d 18 (quotation simplified). Although "[b]oth terms refer to judicial statements that are unnecessary to the resolution of the case," obiter dicta is nonbinding whereas "lower courts are obliged to follow any judicial dicta that may be announced by the higher court." Id. (quotation simplified). "Obiter dicta refers to a remark or expression of opinion that a court uttered as an aside," and includes "statement[s] made by a court for use in argument, illustration, analogy or suggestion." Id. (quotation simplified). Judicial dicta, on the other hand, encompasses "statement[s] deliberately made for the guidance of the bench and bar upon a point of statutory construction not theretofore considered" by the higher court." Id. (quotation simplified).

      As a natural corollary, the Legislature's choice of the word "enforceable" suggests that rather than the entirety of the Utah Rules of Civil Procedure, the Legislature intended only the rules that specifically govern the enforcement of judgments to apply to complete restitution judgments. See, e.g. , Utah R. Civ. P. 64C, 64D, 64E, 66, 69A, & 69C.

      A plaintiff might opt to settle with a defendant after a district court's entry of judgment for less than the judgment amount in order to obtain a prompt payment rather than having to proceed with enforcement efforts. The plaintiff might also wish to avoid any potential costs that the plaintiff might incur as a result of collecting on the judgment or even to avoid altogether the uncertainties that surround the collection process.

      The current version of the Act defines "pecuniary damages" as
      all demonstrable economic injury, whether or not yet incurred, including those which a person could recover in a civil action arising out of the facts or events constituting the defendant's criminal activities and includes the fair market value of property taken, destroyed, broken, or otherwise harmed, and losses, including lost earnings, including those and other travel expenses reasonably incurred as a result of participation in criminal proceedings, and medical and other expenses, but excludes punitive or exemplary damages and pain and suffering.
      Utah Code Ann. § 77-38a-102(6) (LexisNexis 2017).
      As we recognized in Bruun I , this definition differs slightly from the one in effect at the time the district court determined the restitution amounts in the current case. See State v. Bruun , 2017 UT App 182, ¶ 81, 405 P.3d 905. But because Defendants' argument that the district court's restitution award amounted to a double recovery for Victims is barred by the doctrine of res judicata, as hereinafter explained, any change to the definition of "pecuniary damages" is of no import in this case.

      And to the extent the Settlement Agreement was used in an effort to curb Victims' participation in subsequent criminal proceedings, it would be void as against public policy. See 15 Grace McLane Giesel, Corbin on Contracts § 83.1, at 251 (Joseph M. Perillo ed., rev. ed. 2003) ("[A]ny bargain for the purpose of stifling a criminal prosecution, whether or not the bargain is criminal, is always contrary to public policy and unenforceable."). While the release may well have precluded Victims from bringing a civil action to recover the amount of the unauthorized checks, the release was not effective to preclude Victims from complaining to the criminal authorities or benefitting from their rights under the Act.


author: POHLMAN, Judge:

text:
    GROVE BUSINESS PARK LC, Appellee, v. SEALSOURCE INTERNATIONAL LLC, Appellant.
    No. 20170015-CA
    Court of Appeals of Utah.
    Filed May 9, 2019
    Mark A. Nickel, Joseph Z. Alisa, and Stacy J. McNeill, Salt Lake City, Attorneys for Appellant
    Ryan B. Hancey, Salt Lake City, Attorney for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Kate Appleby and David N. Mortensen concurred.
    Opinion
   POHLMAN, Judge:

¶1 Sealsource International LLC (Tenant) leased commercial property from Grove Business Park LC (Landlord). After dealing with a noisy neighbor and other problems with the premises, Tenant moved out before the expiration of the parties' lease agreement (the Lease). Landlord sued Tenant, claiming that Tenant breached the Lease when it vacated the premises early. Tenant denied liability for breach, asserting that Landlord first breached the Lease by constructively evicting it from the premises when Landlord breached the covenant of quiet enjoyment. Tenant also asserted that before it vacated the premises, Landlord breached the warranty of suitability.

¶2 After the district court granted partial summary judgment to Landlord regarding four of Tenant's complaints about the premises, the case proceeded to trial. The jury found in favor of Landlord, concluding that Landlord did not breach the covenant of quiet enjoyment or the warranty of suitability and that Tenant breached the Lease.

¶3 Tenant now appeals the district court's judgment in favor of Landlord, raising three main issues for our consideration. First, Tenant contends that the district court erred in granting partial summary judgment on four of its complaints about the premises. Second, Tenant contends that the court abused its discretion in excluding evidence at trial that Landlord allegedly promised to address those four complaints. Third, Tenant contends that the court erred in awarding attorney fees to Landlord. We affirm.

BACKGROUND

¶4 In September 2011, Tenant leased a commercial property from Landlord for a term of five years and eight months. Soon after moving in, Tenant discovered that the abutting neighbor was a dance studio and that loud music from the studio interfered with its business. Tenant complained to Landlord about the loud music, and it also complained to Landlord about other perceived problems with the premises. When the noise and other issues continued, Tenant vacated the premises in April 2013 even though more than four years remained on the Lease.

¶5 Landlord sued Tenant, claiming that Tenant breached the Lease when it left the premises early. In response to the complaint, Tenant asserted that Landlord had constructively evicted Tenant by failing to address a number of Tenant's complaints about the premises: (1) heating and cooling problems with the HVAC system in Tenant's unit; (2) the front door of Tenant's unit would swing open from wind; (3) the below-standard height of the loading dock; (4) inadequate parking for Tenant and its customers; (5) pervasive insect problems; (6) unmaintained parking and common areas; and (7) noise emanating from the dance studio.

¶6 Landlord moved for partial summary judgment on Tenant's counterclaims to the extent they were based on the first four of these complaints: the HVAC, the front door, the loading dock, and the inadequate parking (collectively, the Four Alleged Defects). According to Landlord, it had no obligation under the Lease to remedy those specific complaints. The district court agreed and granted partial summary judgment in favor of Landlord. It ruled that Tenant's "counterclaims for quiet enjoyment and warranty of suitability, to the extent they concern [the Four Alleged Defects were] dismissed with prejudice and on the merits."

¶7 Before trial, and in light of the district court's ruling that Landlord had no obligation to fix the Four Alleged Defects, Landlord moved to exclude from trial emails with unredacted references to the Four Alleged Defects. Landlord asserted that, under rule 403 of the Utah Rules of Evidence, that evidence would unfairly prejudice Landlord by exposing the jury to "what appear[ed] to be facts of [Landlord] not doing something that, in fact, it didn't have to do under the [Lease]." Tenant opposed the motion, asserting that its evidence regarding the Four Alleged Defects-including emails in which Landlord allegedly told Tenant that it would fix those problems, as well as Landlord's internal emails wherein Landlord mentioned its efforts to address Tenant's complaints-was relevant to its theory of constructive eviction because it showed Landlord's pattern of stalling, which allegedly induced Tenant to stay longer in the premises than it otherwise would have. The court granted Landlord's motion, stating that it would not admit evidence regarding the Four Alleged Defects "when it's contrary to the summary judgment ruling."

¶8 The case proceeded to a five-day jury trial. Landlord sought approximately $ 40,000 from Tenant for unpaid rent; Tenant sought $ 300,000 from Landlord for alleged lost profits and other losses arising from Landlord's alleged breaches of the covenant of quiet enjoyment and the warranty of suitability. As a result of the court's partial summary judgment ruling and evidentiary decision, Tenant's constructive eviction theory at trial was based only on Landlord's alleged failures to fix the insect and noise problems and to maintain the parking and common areas.

¶9 The jury returned a verdict in favor of Landlord. On the special verdict form, the jury indicated it found that Landlord did not breach the covenant of quiet enjoyment by constructively evicting Tenant and that Landlord did not breach the warranty of suitability. Rather, the jury found that Tenant breached the Lease by vacating the premises early and awarded $ 14,452.14 in damages to Landlord.

¶10 Landlord moved for an award of attorney fees on the ground that it was entitled to fees under the terms of the Lease. The district court granted Landlord's motion, concluding that Landlord was the prevailing party and that its incurred fees, with a few exceptions, were reasonable. Accordingly, the district court awarded attorney fees and costs to Landlord in the amount of $ 124,429.97, and it entered a judgment against Tenant in the total amount of $ 138,882.11. Tenant appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Tenant advances three main challenges on appeal. First, Tenant contends that the district court erred in granting partial summary judgment on its claims as they related to the Four Alleged Defects. A motion for summary judgment shall be granted "if the moving party shows that 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). "In reviewing a trial court's grant of summary judgment, we consider only whether it correctly applied the law and correctly concluded that no disputed issues of material fact existed." Pigs Gun Club, Inc. v. Sanpete County , 2002 UT 17, ¶ 7, 42 P.3d 379 (cleaned up). "In so doing, we view all facts and reasonable inferences drawn therefrom in a light most favorable to the nonmoving party." Id. Similarly, questions of contract interpretation that "are confined to the language of the contract itself are questions of law, which we review for correctness." iDrive Logistics LLC v. IntegraCore LLC , 2018 UT App 40, ¶ 30, 424 P.3d 970 (cleaned up).

¶12 Second, Tenant contends that the district court abused its discretion in excluding evidence referring to the Four Alleged Defects. When reviewing a district court's exclusion of evidence, we grant the court "broad discretion to admit or exclude evidence and will disturb its ruling only for abuse of discretion." Daines v. Vincent , 2008 UT 51, ¶ 21, 190 P.3d 1269. But "error in the district court's evidentiary rulings will result in reversal only if the error is harmful." Anderson v. Larry H. Miller Commc'ns Corp. , 2015 UT App 134, ¶ 17, 351 P.3d 832.

¶13 Third, Tenant contends that the district court erred in awarding attorney fees to Landlord, attacking its determinations that Landlord was the prevailing party and that the amount of Landlord's claimed fees was reasonable. We review the district court's "determination as to who was the prevailing party under an abuse of discretion standard." R.T. Nielson Co. v. Cook , 2002 UT 11, ¶ 25, 40 P.3d 1119. Likewise, the district court "has broad discretion in determining what constitutes a reasonable fee, and we will consider that determination against an abuse-of-discretion standard." Dixie State Bank v. Bracken , 764 P.2d 985, 991 (Utah 1988).

ANALYSIS

I. The Partial Summary Judgment Ruling

¶14 Tenant first challenges the district court's grant of partial summary judgment to Landlord on Tenant's claims for breach of the covenant of quiet enjoyment and breach of the warranty of suitability. Tenant asserts that the premises had the Four Alleged Defects, which it believes Landlord was obliged to remedy. In Tenant's view, Landlord was obligated to make the repairs pursuant to the Lease and, at a minimum, the jury should have been allowed to decide whether Landlord was required to fix any of the Four Alleged Defects.

¶15 Landlord responds that because it "had no obligation to address the Four Alleged Defects," it was not in breach and the district court correctly granted summary judgment. According to Landlord, "the Four Alleged Defects do not fall within the plain language of [the] limited repair obligation" contained in the Lease, and therefore it "could not be held liable for failure to address" them.

¶16 Before reaching the specific arguments of the parties, we note that in challenging the district court's grant of partial summary judgment, Tenant does not engage with the nature of, or the particular protections afforded by, its affirmative claims for breach of the covenant of quiet enjoyment and breach of the warranty of suitability. But because Tenant's arguments focus on whether the Lease, or modifications of the Lease, expressly required Landlord to repair the Four Alleged Defects, we likewise focus on the Lease to resolve its challenge to the district court's summary judgment decision.

¶17 In turning our attention to the terms of the Lease, we employ the rules for contract interpretation. Those rules require that "we first look to the writing alone to determine its meaning and the intent of the contracting parties." Skolnick v. Exodus Healthcare Network, PLLC , 2018 UT App 209, ¶ 14, 437 P.3d 584 (cleaned up). "If the language 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." Id. (cleaned up). "A contractual term is ambiguous if, looking to the language of the contract alone, it is reasonably capable of being understood in more than one way such that there are tenable positions on both sides." Id. (cleaned up); see also Brodkin v. Tuhaye Golf, LLC , 2015 UT App 165, ¶ 21, 355 P.3d 224 ("[E]xtrinsic evidence cannot be used to create an ambiguity not reasonably supported by the text of the contract." (citing Daines v. Vincent , 2008 UT 51, ¶ 27, 190 P.3d 1269 )). "But terms are not ambiguous simply because one party seeks to endow them with a different interpretation according to [its] own interests." Skolnick , 2018 UT App 209, ¶ 14, 437 P.3d 584 (cleaned up).

¶18 The pertinent provisions of the Lease are as follows. Paragraph 6 states that "Tenant accepts the Premises in the condition they are in at the inception of this Lease." Paragraph 8 states that Tenant agrees "to pay for all labor, materials and other repairs to the ... heating and air conditioning systems in or serving the Premises." And Paragraph 9 states:

Landlord agrees for the term of this Lease, to maintain in good condition and repair any latent defects in the exterior walls, floor joists, and foundations of the building in which the Premises is located, and to repair any defects in the plumbing and electrical lines, facilities and equipment in the common areas, (subject to the provisions of paragraph 3(b)), for one year after date of occupancy, as well as any damage that might result from acts of Landlord or Landlord's representatives. Landlord shall not, however, be obligated to repair any such damage until written notice of the need of repair shall have been given to Landlord by Tenant and, after such notice is so given, Landlord shall have a reasonable time in which to make such repairs.

¶19 We begin by addressing Tenant's argument that the district court should have allowed the jury to decide the meaning of the Lease's terms. We then address each of the Four Alleged Defects. Finally, we address Tenant's arguments regarding the doctrines of waiver, estoppel, and unclean hands.

A. Whether the Jury Should Have Decided the Meaning of the Lease

¶20 Tenant argues that Landlord "was obligated to make the subject repairs" pursuant to the Lease. Invoking Paragraph 9 of the Lease, Tenant argues that the issues it complained of "were latent defects (either because the defect existed prior to the Lease or the defect was caused by 'acts of Landlord or Landlord's representatives'), or [Landlord] otherwise promised to remediate the issue." According to Tenant, whether any of the Four Alleged Defects "was 'latent' or a 'defect' should have been left to the jury." It claims that "[t]he parties understood 'latent defect' to include issues that arose within the first year of the Lease." Further, "[Landlord's] [various] representations that it was addressing the [Four Alleged Defects] is evidence proving the defects fall under Paragraph 9 of the Lease, meaning the jury should have resolved that factual dispute-not the trial court."

¶21 We conclude that Tenant has not shown that there was a factual question for the jury. It is well established that when contractual terms are unambiguous, the court determines the parties' intentions "from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." Skolnick , 2018 UT App 209, ¶ 14, 437 P.3d 584 (cleaned up). Tenant makes no effort on appeal, nor did it before the district court, to show that the Lease's terms are ambiguous-that is, "capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." Daines , 2008 UT 51, ¶ 25, 190 P.3d 1269 (cleaned up). Had the Lease's terms been facially ambiguous as a matter of law, the parties' intent would be a question of fact for the jury. See Blosch v. Natixis Real Estate Capital, Inc. , 2013 UT App 214, ¶ 22, 311 P.3d 1042. But because Tenant has not established any ambiguity in the Lease's terms, it also has not shown that the district court erred in interpreting the Lease as a matter of law.

B. The Four Alleged Defects

1. The HVAC System

¶22 Tenant argues that the district court erred in dismissing the portion of its claims based on its contention that Landlord failed to fix heating and cooling problems in the HVAC system, maintaining its position that the HVAC was part of Landlord's repair obligations under Paragraph 9 of the Lease. Tenant also suggests that "material facts were in dispute" including "whether the HVAC issues were caused by [Landlord] and/or [Tenant], and whether based on the course and scope of [Landlord's] dealings it was obligated to repair the HVAC." In other words, Tenant suggests that the HVAC problems might have qualified as "damage ... result[ing] from acts of Landlord" that Landlord had an obligation to repair under Paragraph 9 or that Landlord modified the Lease by assuming the obligation to repair the HVAC. In granting summary judgment on this claim, the district court adopted Landlord's reasoning, namely, that Tenant's claim failed as a matter of law because the Lease obligated Tenant, not Landlord, to make the HVAC repairs.

¶23 Tenant has not shown error in the district court's decision. Paragraph 8 states that Tenant agrees "to pay for all labor, materials and other repairs to the ... heating and air conditioning systems in or serving the Premises." (Emphasis added.) Under Paragraph 8's unambiguous language, the obligation to pay for repairs to the HVAC system fell on Tenant, not Landlord. Yet Tenant ignores this language and argues that Paragraph 9 covers the HVAC system in Tenant's unit. It does not. The plain language of Paragraph 9 limited Landlord's repair obligations to latent defects in "the exterior walls, floor joists," and building foundations; and to "defects in the plumbing and electrical lines, facilities and equipment in the common areas." The HVAC system in Tenant's unit is not one of the items identified in Paragraph 9. Because Tenant had the obligation to repair the HVAC in accordance with Paragraph 8, the district court correctly ruled that Tenant could not maintain a claim related to the HVAC against Landlord.

¶24 As for Tenant's argument that disputed material facts exist with regard to whether Landlord caused the HVAC problems, the issue is not preserved for appeal. "When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." Warrick v. Property Reserve Inc. , 2018 UT App 197, ¶ 12, 437 P.3d 439 (cleaned up). "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." Id. (cleaned up). In opposing Landlord's motion for summary judgment on the HVAC problems, Tenant never asserted that Landlord was liable under Paragraph 9 because Landlord damaged the HVAC. As a result, Tenant did not give the district court an opportunity to rule on the issue and did not preserve it for our review.

¶25 Tenant also suggests that disputed facts exist about whether, "based on the course and scope of [Landlord's dealings]," Landlord assumed an obligation to repair the HVAC. The Utah Rules of Appellate Procedure require an appellant's brief to "explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal." Utah R. App. P. 24(a)(8). This requirement means that a "party must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record where appropriate." Bank of Am. v. Adamson , 2017 UT 2, ¶ 13, 391 P.3d 196. "An appellant that fails to devote adequate attention to an issue is almost certainly going to fail to meet its burden of persuasion." Id. Here, Tenant's brief does not contain any citations to legal authority or reasoned analysis in support of its assertion that Landlord assumed obligations related to the HVAC. Tenant therefore has not carried its burden of persuasion regarding the HVAC problems.

2. The Front Door

¶26 Tenant contends that the district court erred in dismissing the portion of its claims relating to the broken front door. Tenant argues that Landlord was obligated to make the repair because Landlord allegedly promised to fix the front door and because Landlord attempted to repair it and "made the problem worse (thereby owning the problem)." In granting summary judgment regarding the front door, the district court accepted Landlord's reasoning that, per the Lease, Landlord was not required to repair and maintain the front door.

¶27 Instead of attacking the district court's interpretation of the Lease, Tenant asserts-without citing authority-that "it is axiomatic that [Landlord] became responsible for repairing the door once it undertook efforts to do so, continued to promise to do so, and never represented to [Tenant] that it was not obligated to repair the door." Because Tenant has not provided legal authority and reasoned analysis based on that authority in support of this argument, Tenant has not devoted adequate attention to the issue and thus has not met its burden of persuasion on appeal. See id. And Tenant's unsupported position on appeal that Landlord "made the problem worse" is belied by its position at the summary judgment hearing when Tenant's counsel stated, "They've sent a maintenance guy in there to fix a door. ... [W]e don't know whether he made it worse . It didn't work from that night out. They've now taken on that obligation to fix that." (Emphasis added.) Tenant thus has not shown that there is a factual question about whether Landlord damaged the front door such that it was obligated to fix it. Accordingly, Tenant has not demonstrated that the district court erred in granting summary judgment to Landlord on this claim.

3. The Loading Dock

¶28 Tenant contends that the district court erred in dismissing its claim that Landlord failed to fix the shorter-than-standard loading dock. The district court granted summary judgment on the loading-dock claim because Landlord had "no Lease-related obligation respecting the warehouse dock" and because Tenant had agreed to accept the premises, including the height of the loading dock, in the condition they were in at the inception of the Lease.

¶29 Tenant contends that the loading dock height falls within the definition of a latent defect in the exterior walls or the foundations of the building, or even a defect in part of the "common areas" of the building, obligating Landlord to fix the dock pursuant to Paragraph 9 of the Lease. But Tenant does not undertake a meaningful analysis to show why it should prevail in this regard. Tenant does not engage with the language of Paragraph 9 and explain why the district court erred in concluding that the loading dock was not a "defect" within the meaning of the Lease. See Adamson , 2017 UT 2, ¶ 13, 391 P.3d 196 (explaining that an "appellant that fails to devote adequate attention to an issue is almost certainly going to fail to meet its burden of persuasion").

¶30 And, to the extent Tenant contends that the "irregular dock height defect could possibly fall within the Lease's catch-all" of any damage that might result from acts of Landlord, Tenant has not rebutted Landlord's argument that because Landlord "did not modify or otherwise act respecting the warehouse dock" while Tenant occupied the premises, the warehouse dock height could not constitute "damage that ... result[ed] from acts of Landlord."

¶31 Further, and perhaps most importantly, the Lease provides, "Tenant accepts the Premises in the condition they are in at the inception of this Lease." Tenant asserts that this provision does not bar its loading-dock claim against Landlord for three reasons: (1) Landlord and its property manager "were better situated and had expertise that [Tenant] lacked" and therefore Tenant "cannot be expected to uncover each and every latent defect"; (2) "whether [Tenant] should have been able to uncover [the irregular loading dock height] is a question of fact precluding summary judgment"; and (3) "[Landlord] failed to explain why it was unreasonable for [Tenant] to assume that [the] loading dock was built to industry standard loading dock heights." But because Tenant did not raise any of these three arguments in opposing Landlord's summary judgment motion, Tenant did not give the district court an opportunity to rule on them and therefore did not preserve them for appeal. See Warrick v. Property Reserve Inc. , 2018 UT App 197, ¶ 12, 437 P.3d 439. In short, Tenant has not shown error in the district court's grant of summary judgment on its loading-dock claim.

4. Parking

¶32 Tenant argues that the district court erred in dismissing the portion of its claims based on its contention that Landlord failed to provide adequate parking for Tenant and its customers. The Lease provides, "Tenant shall have the right to use the common areas and parking areas jointly with any other tenants of the building; however, this right shall be subject to the exclusive control and management of the Landlord. Landlord shall have the right from time to time to establish and modify and enforce reasonable rules and regulations with respect to parking." In granting summary judgment regarding the parking issue, the district court ruled that the Lease entitled Tenant to joint use of parking spaces around the building but that the Lease did not entitle Tenant or its customers to exclusive use of any parking spaces.

¶33 On appeal, Tenant relies on a letter from Landlord, dated before the parties entered the Lease, in which Landlord states that "Tenant shall be entitled to use not more than 8 onsite dedicated parking stalls in front of the office." Landlord responds that the letter expressly states that it "is not an Agreement" and because the letter predates the Lease, its use is barred by the Lease's integration clause, which states, "This Lease constitutes the entire agreement and understanding between the parties hereto and supersedes all prior discussions, understandings and agreements." See generally Tangren Family Trust v. Tangren , 2008 UT 20, ¶ 12, 182 P.3d 326 (explaining that "when parties have reduced to writing what appears to be a complete and certain agreement, it will be conclusively presumed, in the absence of fraud, that the writing contains the whole of the agreement between the parties" (cleaned up)). In its reply brief, Tenant concedes that Landlord "correctly argues that this prior statement is seemingly inconsistent with the Lease, and may be excluded by the parol evidence rule."

¶34 Notwithstanding this concession, Tenant seems to suggest that the Lease's phrase "Landlord shall have the right ... to establish ... reasonable rules and regulations with respect to parking" incorporated by reference the pre-lease letter's "rule" that "[Tenant] shall be entitled to use not more than 8 onsite dedicated parking stalls." "[P]arties may incorporate the terms of another document by reference into their contract" if they do so with specific language; "the reference must be clear and unequivocal." Housing Auth. of County of Salt Lake v. Snyder , 2002 UT 28, ¶ 19, 44 P.3d 724 (cleaned up); Northgate Village Dev., LC v. Orem City , 2014 UT App 86, ¶ 26, 325 P.3d 123 (same). Here, Tenant does not provide legal support regarding incorporation by reference, let alone show that the Lease's language is specific enough to clearly and unequivocally incorporate the pre-lease letter's term regarding dedicated parking. By our reading, the Lease makes no mention of the pre-lease letter. The district court therefore correctly ruled that the Lease did not require Landlord to provide dedicated parking spaces for Tenant.

¶35 Tenant then relies on post-lease communications as evidence of "a material factual dispute about the parties' intent relative to guaranteed parking," which it argues should have precluded summary judgment. But because Tenant has not shown that the Lease's plain language regarding parking was ambiguous, the district court correctly interpreted the Lease as a matter of law. See Skolnick v. Exodus Healthcare Network, PLLC , 2018 UT App 209, ¶ 14, 437 P.3d 584 ("If the language 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." (cleaned up)); Blosch v. Natixis Real Estate Capital, Inc. , 2013 UT App 214, ¶ 22, 311 P.3d 1042 ("It is well established that before the trial court may consider extrinsic evidence of the parties' intent it must first conclude that the contract is facially ambiguous." (cleaned up)). Tenant therefore has not shown error in the district court's summary judgment ruling regarding the parking issue.

C. Waiver, Estoppel, and Unclean Hands

¶36 Finally, Tenant asserts that Landlord "waived its right to, or should have been equitably estopped from arguing that it had no responsibility pursuant to the Lease to make said repairs." Tenant also suggests that the doctrine of unclean hands should apply to Landlord and require Landlord to make the repairs at issue. Landlord counters that these legal theories are not preserved for appeal. In response, Tenant asserts that "specific language is not required" to preserve these issues and "presenting the trial court with an argument based on facts and legal theory is sufficient" for preservation purposes.

¶37 While it is true that "[w]hether a party has properly preserved an argument ... cannot turn on the use of magic words or phrases," In re Baby Girl T. , 2012 UT 78, ¶ 38, 298 P.3d 1251, the issue must be "sufficiently raised to a level of consciousness" such that the trial judge can consider it, Salt Lake City v. Josephson , 2019 UT 6, ¶ 12, 435 P.3d 255 (cleaned up). Thus, "the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority." Warrick v. Property Reserve Inc. , 2018 UT App 197, ¶ 12, 437 P.3d 439 (cleaned up). "The appellant must present the legal basis for [its] claim to the trial court, not merely the underlying facts or a tangentially related claim." State v. Kennedy , 2015 UT App 152, ¶ 21, 354 P.3d 775.

¶38 Tenant directs us to several points in the record where it claims it preserved the theories of waiver, estoppel, and unclean hands. At those points, Tenant perhaps addressed the underlying facts for these theories, but Tenant did not connect the underlying facts to those specific theories. Those points in the record also do not show that Tenant raised the theories with specificity or supported those theories with legal authority. See Warrick , 2018 UT App 197, ¶ 12, 437 P.3d 439. We therefore cannot agree that Tenant raised the theories of waiver, estoppel, and unclean hands to a level of consciousness before the district court sufficient to preserve them.

¶39 In sum, Tenant has not shown that the district court erred in granting summary judgment to Landlord regarding the Four Alleged Defects. As a result, Tenant has not shown that the district court improperly limited the scope of its claims for breach of the covenant of quiet enjoyment and breach of the warranty of suitability to Landlord's alleged failures to remedy the noise problem, the insect problem, and the maintenance of the common areas.

II. The Evidence Excluded at Trial

¶40 Tenant next contends that the district court abused its discretion in excluding at trial evidence that Landlord promised to remedy the Four Alleged Defects. Even if Landlord was not obligated to redress the Four Alleged Defects under the terms of the Lease, Tenant asserts that the jury nevertheless should have been allowed to consider evidence that Landlord assured Tenant that Landlord would take care of the problems surrounding the Four Alleged Defects. As Tenant explains, "[Landlord's] promises concerning those issues [with the premises] explained why [Tenant] waited as long as it did to vacate," and the jury was precluded from considering whether "it was reasonable for [Tenant] to rely on [Landlord's] assurances." Tenant thus argues that the excluded evidence had bearing on its assertion that Landlord constructively evicted it from the premises.

¶41 "An appellant challenging the exclusion of evidence bears the burden of showing the harmfulness of the error." Deutsche Bank Nat'l Trust Co. v. York , 2016 UT App 216, ¶ 20, 387 P.3d 527 (cleaned up). Hence, even when the district court has erred in excluding evidence, "reversal is appropriate only in those cases where, after review of all the evidence presented at trial, it appears that absent the error, there is a reasonable likelihood that a different result would have been reached." Lawrence v. MountainStar Healthcare , 2014 UT App 40, ¶ 16, 320 P.3d 1037 (cleaned up).

¶42 Even assuming without deciding that the district court exceeded its discretion in excluding the evidence, Tenant has not carried its burden to show the harmfulness of that alleged error. To begin with, Tenant represents generally that Landlord promised to resolve the Four Alleged Defects, but Tenant has not sufficiently identified the particular evidence that was excluded from trial. After the district court ruled and decided not to admit evidence regarding the Four Alleged Defects "when it's contrary to the summary judgment ruling," Tenant redacted content from some of the emails that it introduced at trial to remove references to the Four Alleged Defects. We can discern from viewing the redacted exhibits that in some instances single words were redacted, while in other cases entire sentences appear to have been removed, but Tenant does not direct us to where in the record we can review the evidence that was excluded. Apart from Tenant's general representations that Landlord promised to address the Four Alleged Defects, Tenant's argument similarly does not identify or discuss the excluded evidence in enough detail to allow us to assess the potential harm from its exclusion. As a result, we are left with many unanswered questions about exactly what evidence was excluded and whether it was significant enough in context to change the result.

¶43 Further, though "we are under no obligation" "to scour the record to save an appeal by remedying the deficiencies of an appellant's brief," Wohnoutka v. Kelley , 2014 UT App 154, ¶¶ 6, 11, 330 P.3d 762, we have, on our own, located unredacted versions of some of the exhibits in the record. From the material we have identified, we cannot say that had that particular evidence been admitted at trial, "there is a reasonable likelihood that a different result would have been reached." See Lawrence , 2014 UT App 40, ¶ 16, 320 P.3d 1037 (cleaned up). For example, one email from Landlord's manager to Tenant stated, with the emphasized language excluded at trial, "I will continue to monitor the parking and noise levels and see if we can't get this resolved." This evidence shows that Landlord was engaging with Tenant on the subject of parking, and Tenant contends it supports its position that Landlord's assurances delayed it from vacating sooner. Yet because the admitted portion of this email shows Landlord made assurances, it is not evident that had the words "the parking" been retained the evidentiary balance would have tipped in Tenant's favor on the reasonableness of the timing of its abandonment of the premises.

¶44 Importantly, our consideration of harmfulness in this case is also hindered by the fact that Tenant has not furnished an adequate trial record. In particular, Tenant has provided the transcripts of only two days of the five-day trial. The transcripts include the testimony of two witnesses, but the testimony of eight other witnesses is not available. And although the parties' opening statements are included in the record, their closing arguments are not. These omissions are particularly significant in this case because the evidentiary ruling did not exclude all evidence of Landlord's assurances to Tenant. But without knowing the full extent of what the jury heard and what specifically was excluded, we are unable to gauge how the excluded evidence altered the evidentiary picture of the relevant issues without engaging in pure speculation. Given this lack of an adequate record on appeal, we are thus prevented from "undertaking a meaningful harmless error analysis," and we cannot grant Tenant appellate relief on this issue. See Black v. Hennig , 2012 UT App 259, ¶ 16, 286 P.3d 1256. For these reasons, we conclude that Tenant has not established reversible error.

III. Attorney Fees

¶45 We first address Tenant's challenge to the district court's award of attorney fees. We then consider Landlord's request for attorney fees incurred on appeal.

A. Tenant's Challenge to the District Court's Attorney Fees Award

¶46 The district court awarded attorney fees to Landlord pursuant to the terms of the attorney fees provision of the Lease. That provision states, "In the event of any legal proceeding brought by either party against the other under the Lease, the prevailing party shall be entitled to recover all reasonable costs and expenses including the fees of its attorneys in such action or proceeding in such amount as the court may adjudge reasonable as attorney's fees." "[I]f provided for by contract, the award of attorney fees is allowed only in accordance with the terms of the contract." R.T. Nielson Co. v. Cook , 2002 UT 11, ¶ 17, 40 P.3d 1119.

¶47 Tenant contends that the district court's award of attorney fees is flawed in two ways. First, it asserts the court erred in deeming Landlord the prevailing party. Second, it asserts the court erred in finding that Landlord's claimed fees were reasonable.

1. Prevailing Party

¶48 Tenant contends that "neither party is the clear prevailing party" and that therefore the district court erred in awarding attorney fees to Landlord. We disagree.

¶49 As our supreme court observed in R.T. Nielson , "determining the prevailing party for purposes of awarding fees can oftentimes be quite simple." Id. ¶ 23 (cleaned up). "Where a plaintiff sues for money damages, and plaintiff wins, plaintiff is the prevailing party; if defendant successfully defends and avoids adverse judgment, defendant has prevailed." Id. The court cautioned, however, that "[t]his simple analysis cannot always be employed." Id. Whether a party is the prevailing party "depends, to a large measure, on the context of each case," and district courts are advised to consider relevant factors while not abandoning their common sense. Id. ¶ 25. Among the factors relevant to the determination are: (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 on the various claims. Utah Transit Auth. v. Greyhound Lines, Inc. , 2015 UT 53, ¶ 58, 355 P.3d 947.

¶50 Identifying Landlord as the prevailing party in this case does not seem difficult to us. As the district court correctly noted, this is not a case where both parties "achiev[ed] some level of success." Rather, Landlord brought and prevailed upon its single claim against Tenant while it also defeated both of Tenant's counterclaims, for which Tenant sought damages in excess of $ 300,000.

¶51 Despite being completely shut out on the verdict, Tenant argues that the district court should have concluded that neither party prevailed. Specifically, Tenant reasons that the litigation was not "a successful endeavor" for Landlord because it recovered only about one-third of the damages it sought at trial. Although the comparison of Landlord's award to its claim is a relevant factor under the prevailing party analysis, see id. , the factor cannot be weighed in isolation. Landlord may have recovered only one-third of its $ 40,000 damage claim for breach of contract, but it successfully defended against counterclaims worth $ 300,000. Under these circumstances, we would be hard-pressed to say that the district court abused its discretion in identifying Landlord as the prevailing party. See id. ("[W]e employ an abuse of discretion standard when reviewing a district court's prevailing party determination.").

2. Reasonableness

¶52 Next, Tenant contends that the amount of Landlord's attorney fees was unreasonable because of Landlord's "universal failure to allocate" and to "deduct any fees expended on issues to which it clearly did not prevail at trial." For instance, Tenant asserts that Landlord cannot recover fees incurred pursuing unsuccessful motions. Tenant also contends that Landlord impermissibly "block billed" by lumping multiple tasks under the same time entry and thereby prevented an accurate determination of the reasonableness of its fees.

¶53 The district court's determination of the reasonableness of fees may be based on a variety of factors, including

the difficulty of the litigation, the efficiency of the attorneys in presenting the case, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality for similar services, the amount involved in the case and the result attained, and the expertise and experience of the attorneys involved.

Dixie State Bank v. Bracken , 764 P.2d 985, 989 (Utah 1988) (cleaned up). Here, the district court identified these and other factors and ultimately awarded Landlord $ 124,429.97 in attorney fees, after it reduced the award by $ 7,658.23 for fees related to some pre-litigation expenses, postage expenses, and expenses related to an interlocutory appeal. The court found that the case "involved complex, somewhat novel areas of law, requiring extensive research and argument," and that most of Landlord's claimed attorney fees were "reasonable given the facts and circumstances."

¶54 With regard to Tenant's complaint that Landlord did not adequately allocate its fees, the district court found that "claim allocation is inapplicable" because "all of [Landlord's] claims were successful and carried with them an entitlement to attorney fees." "[A]n attorney fee application must reasonably allocate time incurred between compensable and non-compensable claims." Brown v. David K. Richards & Co. , 1999 UT App 109, ¶ 15, 978 P.2d 470. Here, the district court essentially determined that all of Landlord's claims were compensable because they were all based on the Lease and all "properly categorized as 'successful claims for which there may be an entitlement to attorney fees.' " (Quoting Foote v. Clark , 962 P.2d 52, 55 (Utah 1998).) We agree with the district court. The governing attorney fees provision broadly permits an award of reasonable attorney fees to the prevailing party in "any legal proceeding brought by either party against the other under the Lease." Tenant summarily claims that there were "issues to which [Landlord] clearly did not prevail at trial," but it does not identify a single claim (or even issue) that was not covered by the specific terms of the Lease. Thus, given that Landlord had no non-compensable claims under the Lease's attorney fees provision, the district court did not err in determining that there was no need to allocate.

¶55 Tenant also complains that the district court erred in awarding fees to Landlord for its time spent on unsuccessful pre-trial motions. With one exception, the court rejected Tenant's challenge to Landlord's fees on this basis because it found that those motions "led to [Landlord's] ultimate success." In so doing, the court relied on Dejavue, Inc. v. U.S. Energy Corp. , 1999 UT App 355, 993 P.2d 222, and determined that "the substance of [Landlord's] motions and overall litigation strategy were ultimately successful." Tenant has not addressed Dejavue on appeal, nor challenged the court's determination that the fees incurred were reasonable because they contributed to Landlord's success. As a result, Tenant has not carried its burden of persuasion on appeal. See Utah R. App. P. 24(a)(8).

¶56 Similarly, Tenant has not demonstrated that the district court erred in not rejecting certain of Landlord's time entries as unreasonable solely on the basis that they were block billed. The district court concluded that "block billing does not prevent a prevailing party from recovering attorney fees under Utah law," citing two Utah cases where fees were allowed despite the use of block billing. See Shurtleff v. United Effort Plan Trust , 2012 UT 47, ¶¶ 10, 41, 289 P.3d 408 ; Brown , 1999 UT App 109, ¶¶ 10, 15, 51, 978 P.2d 470. Tenant does not address those cases but instead relies on an unpublished case from the Tenth Circuit Court of Appeals in which the court identified some difficulties associated with block billing. See BP Pipelines (N. Am.) Inc. v. C.D. Brown Constr., Inc. , 473 F. App'x 818, 833-36 (10th Cir. 2012). But even in that case, the Tenth Circuit explained that it has "never mandated a reduction or a denial of a fee request based on block billing." Id. at 835. Instead, "the decision of whether block billing indicates an unreasonable claim should remain with the district court who should be allowed to exercise its discretion accordingly." Id. (cleaned up).

¶57 Here, Tenant invited the district court to strike all of Landlord's block entries without even suggesting that it could not assess the reasonableness of the fees for any one entry. Because an entry is not per se unreasonable simply because it was block billed, Tenant has failed to show that the district court exceeded its discretion in determining the reasonableness of Landlord's attorney fees.

B. Landlord's Request for Attorney Fees on Appeal

¶58 Finally, Landlord requests an award of the attorney fees it incurred in defending this appeal. "When a party is entitled to attorney fees below and prevails on appeal, that party is also entitled to fees reasonably incurred on appeal." Dillon v. Southern Mgmt. Corp. Ret. Trust , 2014 UT 14, ¶ 61, 326 P.3d 656 (cleaned up). Because Landlord was awarded attorney fees in the district court and has prevailed on appeal, we grant Landlord's request for an award of reasonable attorney fees on appeal.

CONCLUSION

¶59 We conclude that Tenant has not established error in the district court's grant of partial summary judgment to Landlord on Tenant's claims as they related to the Four Alleged Defects. Tenant also has not shown reversible error in the district court's exclusion of evidence that Landlord allegedly promised to address the Four Alleged Defects. We also conclude that Tenant failed to show that the district court exceeded its discretion in awarding attorney fees to Landlord. Accordingly, we affirm the district court's decisions, and we remand for the limited purpose of calculating Landlord's reasonable attorney fees incurred on appeal.

      Tenant made these assertions in support of its counterclaims, styled as breach of the covenant of quiet enjoyment and breach of the warranty of suitability, and in defense to Landlord's claim for breach of contract.

      This focus may be because the Lease itself includes a "Quiet Enjoyment" provision, which states that "Tenant shall quietly enjoy the Premises, subject, however, to the terms of this Lease ." (Emphasis added.)

      "If a contract contains no ambiguity, the court will not consider extrinsic evidence and will enforce the contract according to its terms." Brodkin v. Tuhaye Golf, LLC , 2015 UT App 165, ¶ 18, 355 P.3d 224 (cleaned up). But "if a party contends that an apparently unambiguous contract contains a latent ambiguity," as opposed to a facial ambiguity, "the court will consider extrinsic evidence to determine whether the contract contains a latent ambiguity." Id. ¶ 20. Tenant has not contended that a latent ambiguity exists in the Lease.

      Tenant also contends that Landlord was obligated to repair the HVAC because Landlord replaced the HVAC in a neighboring unit that involved a comparable lease. But we agree with Landlord that even if Landlord fixed another tenant's HVAC, that fact alone does not establish the rights and obligations as between Landlord and Tenant.

      Tenant does not expressly identify the claims or defenses it contends this evidence is relevant to, but argues generally that it is relevant to the issue of constructive eviction and particularly whether its delay in vacating was reasonable. The jury was instructed that the issue of constructive eviction was relevant to Landlord's claim for breach of the Lease and Tenant's claim for breach of the covenant of quiet enjoyment. Based on those instructions, we understand Tenant to be arguing that the excluded evidence was relevant to Landlord's breach of contract claim and Tenant's breach of quiet enjoyment claim.

      Tenant argues that its $ 300,000 counterclaims should not factor into the prevailing party equation because those claims were based on the same arguments supporting the theory of constructive eviction Tenant advanced in defense of Landlord's breach of contract claim. We are not persuaded. Tenant's claims put Landlord at risk of a $ 300,000 judgment. The fact that Landlord may have defeated Tenant's counterclaims for the same reasons it succeeded on its breach of contract claim does not make it any less successful. Similarly, we reject Tenant's arguments that Landlord was not a prevailing party because it declined pre-litigation settlement offers in excess of its recovery and because the amount of Landlord's fees exceeded the amount of its award. Once again, in making these arguments, Tenant fails to account for Landlord's defeat of Tenant's $ 300,000 counterclaims.

      Block billing involves recording only an overall time-total for a set of tasks performed rather than separately recording time spent on each task. See Brown v. David K. Richards & Co. , 1999 UT App 109, ¶ 10 n.1, 978 P.2d 470. For example, in this case, the lawyer billed 1.2 hours on one day for the following three tasks: "Work on amended complaint. Prepare correspondence to opposing counsel. Prepare stipulation to amendment."