author: ORME, Judge:

text:
    Benjamin ARRIAGA, Appellant, v. STATE of Utah, Appellee.
    No. 20150911-CA
    Court of Appeals of Utah.
    Filed August 23, 2018
    Opinion
   ORME, Judge:

¶1 Appellant Benjamin Arriaga (Defendant) appeals the district court's order granting the State's summary judgment motion and denying his petition for postconviction relief. Defendant pled guilty to murder, a first degree felony, and was sentenced to prison in 2011. He now challenges his guilty plea on the grounds that it was not knowing or voluntary and that he received ineffective assistance of counsel. We affirm the summary judgment denying his petition for postconviction relief.

BACKGROUND

¶2 Defendant admitted to police that, on April 4, 2010, he shot and killed the man (Victim) who was having an affair with his wife. He explained that, having discovered the affair, he angrily confronted Victim in a park. Defendant then pointed a gun at Victim, intending to scare him into admitting to the affair. When Victim admitted to sleeping with Defendant's wife, Defendant replied that "this kind of thing is not forgiven." Defendant said that Victim then lunged for the gun, and a struggle ensued. Defendant told police that the gun discharged several times in the course of the struggle, and Victim was shot once in the abdomen, once in the leg, twice in the back, and once in the back of the head.

¶3 The State charged Defendant with murder, a first degree felony, see Utah Code Ann. § 76-5-203(3)(a) (LexisNexis 2017); the purchase, transfer, possession, or use of a firearm by a restricted person, a second degree felony, see id . § 76-10-503(2)(a); and obstruction of justice, a second degree felony, see id. § 76-8-306(3)(a). Defendant entered into a plea bargain, agreeing to plead guilty to murder if the other charges were dismissed. At the plea hearing, Defendant acknowledged he knew that by pleading guilty he was waiving his constitutional rights, including the right to the presumption of innocence and the right to a jury trial. Defendant further acknowledged that he understood everything that his counsel had discussed with him, including the plea affidavit. The court then inquired whether Defendant had any questions about the plea affidavit, to which Defendant replied that he did not.

¶4 After trial counsel described the factual basis for Defendant's murder charge, Defendant made statements implying that he acted in self-defense:

[TRIAL COUNSEL]: Your Honor, on April 4th 2010 in Salt Lake County [Defendant] confronted a man who had been sleeping with his wife. An argument and subsequent fight took place at which time he pulled out a firearm and he shot the man killing him.
THE COURT: Is that what happened, [Defendant]?
THE DEFENDANT: I defended myself. It was not my intention. I never thought about hurting him.
....
[TRIAL COUNSEL]: Your Honor, we had-discussed the imperfect self-defense concept and that he did pull out a gun to get the man to confess to sleeping with his wife. And that the man charged at him but he was unarmed. So that is why he used a gun.
THE COURT: I will find that that is a sufficient factual basis.
THE DEFENDANT: He was drugged and drunk and I didn't know if he had a weapon, a knife and that's why I-

After Defendant made these statements, the district court clarified with Defendant that he intentionally killed Victim by asking Defendant whether he knew that by pulling the trigger he would cause Victim's death. Defendant acknowledged that he did. After entering his guilty plea, Defendant asked to be sentenced immediately and waived the right to withdraw his plea.

¶5 After a few months in prison, Defendant filed a petition under the Post-Conviction Remedies Act, see Utah Code Ann. §§ 78B-9-101 to -405 (LexisNexis 2012), arguing that his plea was involuntary because his attorney explained his plea to him without the assistance of an interpreter. He also raised an ineffective-assistance-of-counsel claim on that same basis, specifically arguing that counsel's failure to use an interpreter resulted in Defendant not knowing that he had a valid self-defense argument and could have taken his case to trial. The State filed a response to his petition, asserting that Defendant had not carried his burden of establishing by a preponderance of the evidence that his trial counsel's performance was deficient and prejudicial. The State also contended that the nature of Defendant's plea was both voluntary and knowing because any misunderstandings regarding his plea that arose out of his communications with his attorney were cured by his plea affidavit and plea colloquy, both of which had been translated into Spanish.

¶6 An evidentiary hearing was held, but suspended, and in the meantime, the State moved for summary judgment. Granting the State's motion, the district court concluded that Defendant had failed to show that trial counsel's performance was deficient and that all constitutional prerequisites for a valid guilty plea had been satisfied in Defendant's case. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 Defendant contends that the district court erred in granting the State's motion for summary judgment for two reasons. First, he argues that his plea was not knowing or voluntary, asserting he did not understand the essential elements of his murder charge at the time of his plea. Second, he argues that his trial counsel's performance was deficient for failure to use an interpreter during their out-of-court discussions.

¶8 "We review an appeal from an order dismissing or denying a petition for postconviction relief for correctness without deference to the lower court's conclusions of law." Gardner v. State , 2010 UT 46, ¶ 55, 234 P.3d 1115 (citation and internal quotation marks omitted). "Similarly, we review a grant of summary judgment for correctness, granting no deference to the lower court." Ross v. State , 2012 UT 93, ¶ 18, 293 P.3d 345 (brackets, citation, and internal quotation marks omitted).

ANALYSIS

I. Defendant's Plea

¶9 Defendant contends that his self-defense statements and the circumstances surrounding his guilty plea demonstrate that he did not understand the elements of the murder charge against him, which rendered his plea unknowing and involuntary. For a guilty plea to be valid under the Due Process Clause of the Fourteenth Amendment, it must be made "voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences." Bradshaw v. Stumpf , 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (citation and internal quotation marks omitted). For that reason, "[i]t is the responsibility of the district court to ensure that defendants enter pleas knowingly and voluntarily." State v. Candland , 2013 UT 55, ¶ 14, 309 P.3d 230. And rule 11 of the Utah Rules of Criminal Procedure provides courts with a "roadmap for ensuring that defendants receive adequate notice of their rights and for examining defendants' subjective understanding and intent." Id.

¶10 Rule 11 states that a district court may not accept a guilty plea until it has found that the defendant understands his constitutional rights, including his right to the presumption of innocence and his right to a jury trial. Utah R. Crim. P. 11(e)(3). Additionally, the court must ensure that the defendant knows "the nature and elements of the offense to which the plea is entered." Id. R. 11(e)(4)(A). It is not enough for the district court to give notice to the defendant; the court must also find that "the defendant actually understood the charges, the constitutional rights, and the likely consequences of the plea and voluntarily chose to plead guilty." Candland , 2013 UT 55, ¶ 16, 309 P.3d 230 (emphasis added).

¶11 Defendant asserts that he lacked a meaningful understanding of the murder charge, and he points to his self-defense statements during the plea colloquy to demonstrate this lack of understanding. But the transcript of the plea colloquy shows that any misunderstanding Defendant may have had was inconsequential given his acknowledgements during the plea colloquy that he understood the contents of his plea affidavit and that he understood everything counsel had explained to him.

¶12 Within the plea affidavit, prepared in both English and Spanish, Defendant stated that the elements of the crime for which he was pleading guilty were that "[Defendant] did knowingly and intentionally cause[ ] the death of another." He also stated that the facts providing a basis for these elements were that on April 4, 2010, he "confront[ed] a man who slept [with his] wife" and "fought with the man and subsequently shot him, killing him." Based on Defendant's assurances in the plea colloquy that he had reviewed and understood his plea affidavit, there is no doubt that Defendant understood the elements of the murder charge at the time of his guilty plea.

¶13 Defendant also argues that his self-defense claims "negated an essential element of the murder charge and provided objective evidence that he did not understand the proceedings." When a defendant puts an affirmative defense at issue during trial, "the State carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense[.]"

State v. Low , 2008 UT 58, ¶ 45, 192 P.3d 867 (citation and internal quotation marks omitted). Accordingly, a "necessary element of a murder conviction is the absence of affirmative defenses." Id. When Defendant made his statements indicating that he acted in self-defense, his trial counsel explained to the court that the concept of imperfect self-defense had been explained to Defendant, specifically in relation to the facts of his case, including counsel's assessment that it was not a viable defense. And "[w]here a defendant is represented by competent counsel, the court usually may rely on that counsel's assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty." Bradshaw v. Stumpf , 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). Trial counsel assured the district court that the concept of imperfect self-defense had been explained to Defendant, and where Defendant had previously told the court he understood everything counsel had explained to him, it was reasonable for the court to conclude that Defendant understood how the imperfect self-defense theory applied in his case. Furthermore, with the benefit of an interpreter during the plea colloquy, Defendant made no objection to trial counsel's assurance that Defendant understood.

¶14 We do, however, recognize that Defendant's statements suggesting possible self-defense did raise a question of whether he intended to kill Victim because he stated, "It was not my intention. I never thought about hurting him." It was therefore necessary for the court to address the conflict between this statement and his plea affidavit. See State v. Maguire , 830 P.2d 216, 217 (Utah 1991) (" 'Any omissions or ambiguities in the affidavit must be clarified during the plea hearing, as must any uncertainties raised in the course of the plea colloquy.' ") (quoting State v. Smith , 812 P.2d 470, 477 (Utah Ct. App. 1991) ). And the court did address this conflict by asking Defendant whether he knew that his actions, specifically pulling the trigger of the gun, would cause Victim's death. Defendant acknowledged that he did.

¶15 Defendant further contends that he did not understand his guilty plea because he "speaks Spanish, has a fifth-grade education, and did not speak English except a few random words at the time he pleaded guilty," while "[h]is trial counsel did not speak Spanish." He additionally claims not to have read the plea affidavit before signing it. But these claims contradict Defendant's statements to the district court during his plea hearing. Defendant is bound by his statements because "the representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison , 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). "Accordingly, the truth and accuracy of a defendant's statements during the [plea colloquy] should be regarded as conclusive in the absence of a believable, valid reason justifying a departure from the apparent truth of his [plea colloquy] statements." United States v. Weeks , 653 F.3d 1188, 1205 (10th Cir. 2011) (citation and internal quotation marks omitted). Here, there is no valid reason to doubt the truthfulness of Defendant's statements to the district court during his plea colloquy because an interpreter was present and Defendant professed to understand everything discussed with counsel and the contents of his plea affidavit. Because there is nothing in the record that suggests Defendant lacked an understanding of the elements of the murder charge against him or anything but his own later assertions that he did not actually understand the essence of imperfect self-defense, the district court did not err in concluding on summary judgment that his plea was voluntarily and knowingly made.

II. Assistance of Counsel

¶16 Defendant contends that his trial counsel's performance was deficient because no interpreter was present during their out-of-court discussions prior to his plea hearing. To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) "counsel's performance was deficient in that it 'fell below an objective standard of reasonableness' " and (2) "counsel's performance was prejudicial in that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Menzies v. Galetka , 2006 UT 81, ¶ 87, 150 P.3d 480 (quoting Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

¶17 Defendant must first show that "counsel's representation fell below an objective standard of reasonableness." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. Defendant asserts that the language barrier with his trial counsel prevented him from becoming aware of his right to the presumption of innocence and his right to plead not guilty. He claims that his counsel's conduct fell below the standard of reasonableness when he did not secure an interpreter to better communicate these rights to Defendant. Nevertheless, any "[j]udicial scrutiny of counsel's performance must be highly deferential" and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. And whether counsel's conduct was reasonable "may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691, 104 S.Ct. 2052.

¶18 Here, Defendant claims that he only knew a few words of English at the time of his plea hearing and that trial counsel did not speak Spanish. But with an interpreter present, Defendant never advised the court that there was any issue in communicating with his counsel. He specifically acknowledged in the plea colloquy, during which an interpreter was present, that he understood everything counsel had explained to him. Had there been an insurmountable language barrier, Defendant had the opportunity to raise this issue with the court in the plea hearing on several occasions when asked by the court whether he understood everything his counsel had discussed with him and whether he had questions about the plea affidavit. We therefore are not persuaded that trial counsel acted unreasonably in failing to secure an interpreter for his out-of-court consultations with Defendant.

¶19 We do appreciate the importance of interpreters, but any suggestion that we should err on the side of requiring an interpreter in this case is dispelled by the other basis on which Defendant's ineffective assistance claim can be rejected. Defendant does nothing to establish that counsel's failure to secure an interpreter was prejudicial. To contest his guilty plea on the ground of ineffective assistance of counsel, Defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial and that such a decision would have been rational under the circumstances." Rippey v. State , 2014 UT App 240, ¶ 14, 337 P.3d 1071 (emphasis in original) (citation and internal quotation marks omitted). Defendant must do more than allege that he would not have pled guilty had his counsel secured an interpreter for their out-of-court discussions. Rather, we "look to the factual circumstances surrounding the plea" and whether it would have been rational for Defendant to reject the plea and insist on a trial. Id. (citation and internal quotation marks omitted).

¶20 At the time of the State's plea offer, Defendant had already confessed to killing Victim, and a motion to suppress that confession had been denied by the district court. Defendant asserts that, had trial counsel better explained the elements of murder to Defendant, he would have known he had a valid claim for imperfect self-defense based on his statement to officers that Victim lunged at him during the confrontation. But the imperfect-self-defense theory is substantially undermined by the fact that, in what Defendant characterized as a tussle over the gun that he brought only to scare Victim, Victim was shot five times, including twice in the back and once in the back of the head. Based on these circumstances, there is nothing to suggest that it would have been rational for Defendant to reject the State's offer to dismiss the other two felony charges against him in exchange for his guilty plea to the murder charge.

CONCLUSION

¶21 Defendant's statements and actions do not demonstrate that his guilty plea was unknowing or involuntary or that his counsel performed deficiently by not having an interpreter present during their out-of-court discussions. Additionally, he fails to establish any prejudice as a result of this decision by counsel. We thus presume Defendant's counsel rendered constitutionally adequate assistance, exercising reasonable professional judgment, and the district court did not err in granting summary judgment to the State. Accordingly, we affirm.

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred. JUDGE JILL M. POHLMAN concurred in part and concurred in the result in part, with opinion.

POHLMAN, Judge (concurring in part and concurring in the result in part):

¶22 I concur with the lead opinion except as to Part I, in which I concur in the result. I am troubled by my colleagues' conclusion that the district court adequately remedied the conflict between the statements in Defendant's plea affidavit and his self-defense assertions during the plea colloquy. See supra ¶ 14. Defendant interjected statements that created a conflict about the nature of his plea. In my view, it is questionable whether the court's attempts to resolve the conflict were successful.

¶23 The court apparently recognized the significance of Defendant's initial assertion that he "defended [him]self," and it attempted to resolve the apparent conflict between his plea affidavit and that assertion by asking defense counsel if it changed the plea. But although counsel explained that he had "discussed the imperfect self-defense concept" with Defendant, he did not explain what Defendant understood. Thus, counsel's representation did not resolve the conflict or demonstrate that Defendant understood he was waiving any potential defenses in pleading guilty to first degree murder.

¶24 Defendant further added to the confusion when he interjected that he shot Victim because "[Victim] was drugged and drunk and [Defendant] didn't know if [Victim] had a weapon." The court again tried to resolve the conflict, this time asking Defendant whether he knew that his actions would cause Victim's death. Defendant acknowledged that he knew "by pulling the trigger" of the gun he could cause Victim's death, but that acknowledgement did not speak to the conflict created by his assertions: whether he understood that in pleading guilty to first degree murder he was conceding that the concept of imperfect self-defense did not apply.

¶25 Thus, I question whether the ambiguities introduced in the plea hearing regarding the nature of Defendant's plea were resolved by the court's colloquy. See State v. Lehi , 2003 UT App 212, ¶ 16, 73 P.3d 985 (recognizing the district court's obligation to clarify discrepancies during the plea colloquy). However, I concur in the result and would affirm the district court's decision based on Defendant's failure to demonstrate prejudice.

¶26 Under the Post-Conviction Remedies Act, "[t]he court may not grant relief from a conviction or sentence unless the petitioner establishes that there would be a reasonable likelihood of a more favorable outcome in light of the facts proved in the post-conviction proceeding, viewed with the evidence and facts introduced at trial or during sentencing."

Utah Code Ann. § 78B-9-104(2) (LexisNexis 2012); see also Gardner v. State , 2010 UT 46, ¶ 62, 234 P.3d 1115. A petitioner must satisfy the same standard to obtain relief based on a claim of ineffective assistance of counsel. Landry v. State , 2016 UT App 164, ¶ 23 n.6, 380 P.3d 25.

¶27 On appeal, Defendant relies on the same arguments to satisfy this standard for his claims based on the voluntariness of his plea and his claims based on ineffective assistance of counsel. In addressing Defendant's challenge based on ineffective assistance of counsel, we conclude that he failed to demonstrate that, absent the claimed errors, he would have rejected the State's plea offer and that it would have been rational under the circumstances to do so. See supra ¶¶ 19-20; see also Rippey v. State , 2014 UT App 240, ¶ 14, 337 P.3d 1071 (requiring a petitioner challenging the voluntariness of his plea based on ineffective assistance of counsel to "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial and that such a decision would have been rational under the circumstances" (quotation simplified) ). I believe this deficiency is equally fatal to Defendant's challenge based on the voluntary nature of his plea. For the same reasons he fails to demonstrate prejudice arising out of his ineffective assistance of counsel claim, he has failed to demonstrate prejudice arising out of his claim based on the voluntariness of his plea. See supra ¶¶ 19-20. On this basis, I would affirm the district court's decision granting summary judgment to the State on Defendant's postconviction challenge to the voluntariness of his plea.

      Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code for convenience.

      Defendant's primary language at the time of the plea hearing was Spanish. To ensure Defendant understood the court proceedings, interpreters were present and the plea affidavit was written in both English and Spanish. However, an interpreter was not present during out-of-court discussions between Defendant and his trial counsel.

      The State argues that Defendant's involuntary plea claim is procedurally barred as Defendant did not raise it in a motion to withdraw his plea before being sentenced. See Utah Code Ann. § 78B-9-106(1)(c) (LexisNexis Supp. 2017) (stating that a person is ineligible for postconviction relief on any ground that "could have been but was not raised at trial or on appeal"). Defendant's argument is unsuccessful in this appeal, so we do not dwell on whether it is also procedurally barred.

      Imperfect self-defense "is an affirmative defense to a charge of murder" in cases where "the defendant caused the death of another ... under a reasonable belief that the circumstances provided a legal justification or excuse for the conduct although the conduct was not legally justifiable or excusable under the existing circumstances." Utah Code Ann. § 76-5-203(4)(a) (LexisNexis 2017). And so the "difference between perfect self-defense and imperfect self-defense is the determination of whether the defendant's conduct was, in fact, legally justifiable or excusable under the existing circumstances." State v. Low , 2008 UT 58, ¶ 32, 192 P.3d 867 (citation and internal quotation marks omitted). Cf. Utah Code Ann. § 76-2-402(1)(b) (LexisNexis 2017) (providing that, in cases of perfect self-defense, lethal force is justified "only if the person reasonably believes that force is necessary to prevent death or serious bodily injury ... as a result of another person's imminent use of unlawful force"). But the use of lethal force is not justified when the defendant "initially provokes the use of force against the person with the intent to use force as an excuse to inflict bodily harm upon the assailant" or when the defendant "was the aggressor" and did not withdraw from the encounter. Id. § 76-2-402(2)(a)(i), (iii).


source: Caselaw Access Project

author: MORTENSEN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Phillip Virgile BARNEY, Appellant.
    No. 20160620-CA
    Court of Appeals of Utah.
    Filed August 23, 2018
    Don M. Torgerson, Attorney for Appellant.
    Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee.
    Judge David N. Mortensen authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Phillip Virgile Barney held Victim hostage overnight in a pickup truck on a lonely country road, beating Victim and holding a knife to her throat in the process. During the ordeal, Barney told Victim that he intended to continue to torture her and eventually kill her. Based on this incident, a jury convicted Barney of aggravated kidnapping, aggravated assault, and violation of a protective order. Barney claims his convictions should be reversed because the trial court allowed evidence of other acts of abuse that Barney had perpetrated against Victim. We reject Barney's claims and affirm.

BACKGROUND

¶2 Victim walked alone one evening searching for her teenage daughter. Despite an active protective order barring contact, Barney approached Victim in his truck and offered a ride to her daughter's location. Although Victim and Barney had been arguing earlier that day, Victim got into his truck.

¶3 As soon as Victim got in, Barney grabbed her hair and slammed her head against the center console, pinning her neck under his forearm. Barney sped away, punching and kneeing Victim in the face while threatening to kill her. He then drove until the truck ran out of gas on a rural country road.

¶4 Stranded there, Barney pulled out a large knife and held it to Victim's throat. Barney threatened to torture and kill Victim, saying he would force a stone down her throat to choke her, and that when she was almost dead he would slit her throat and fill her body with rocks. At one point, Barney gave the knife to Victim and told her to kill herself, which she considered doing. Barney eventually fell asleep, but Victim remained in the truck with him until morning.

¶5 After sunrise, Barney left to find gas. He found a local rancher, who brought gas to the stranded truck. Victim did not speak with the rancher or flee while Barney was gone. Barney then brought Victim home. Victim did not report this incident (the Kidnapping Incident) to the police until roughly two months later.

¶6 The State charged Barney for the Kidnapping Incident. Before trial, the State moved to admit evidence of other acts of abuse that Barney had committed against Victim. Those acts included (1) a prior incident where, because Victim refused to get in his truck, Barney drove his truck at a high speed toward Victim, narrowly missing her (the Vehicular Assault Incident); (2) a prior incident where Barney, upset that Victim was not responding to his attempts to contact her, found Victim babysitting at a friend's house, pushed his way into the home, and pinned her by the neck against a wall with his forearm while she was holding a child (the Strangulation Incident); (3) a prior incident where Barney sent letters to Victim while he was in jail, violating a protective order (the Protective Order Incident); and (4) an incident that occurred after the Kidnapping Incident, but before the Kidnapping Incident was reported, where Barney began speeding with Victim in the truck, grabbing her by the head, and when he refused to stop, Victim tried to jump out of the truck only to have Barney pull her back in (the Moving Vehicle Incident). The trial court initially excluded all of this evidence, but it did not foreclose the admission of the evidence on rebuttal "if [Victim is] challenged or if there's evidence that she should have done something and didn't."

¶7 During trial, Barney's defense counsel questioned Victim about why she did not try to escape and why she waited so long to report the Kidnapping Incident to the police. To rebut those concerns, the State again moved to admit the other-acts evidence. The trial court admitted the Vehicular Assault, Strangulation, and Protective Order Incidents for the noncharacter purpose of explaining Victim's state of mind: her fear of Barney. The trial court also allowed evidence of the Moving Vehicle Incident to show Barney's "modus operandi," and Victim's "reaction and her fear."

¶8 A jury convicted Barney of aggravated kidnapping, aggravated assault, and violation of a protective order. Barney appeals, challenging the trial court's decision to allow the other-acts evidence.

ISSUE AND STANDARD OF REVIEW

¶9 Barney contends that the trial court erred in admitting the four instances of other-acts evidence. Challenges to a trial court's ruling on 404(b) evidence are reviewed for abuse of discretion. State v. Thornton , 2017 UT 9, ¶ 56, 391 P.3d 1016. That is, appellate courts "simply assess whether the district judge made an error in admitting or excluding the evidence in question." Id. ¶ 53 (emphasis omitted). "[A]ppellate review of evidentiary rulings is on the decision made at trial, not the process by which that decision is reached." Id. ¶ 3.

ANALYSIS

¶10 Barney contends that the trial court erred in admitting evidence of the Vehicular Assault, Strangulation, Protective Order, and Moving Vehicle Incidents. Specifically, Barney argues that the other-acts evidence was not admitted for an appropriate noncharacter purpose, the evidence was not relevant, and the evidence was prejudicial. We disagree on all points.

¶11 Rule 404(b) of the Utah Rules of Evidence sets forth the standards governing a trial court's decision to admit or exclude evidence of crimes, wrongs, or other acts. The rule prohibits the use of this evidence "to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character." Utah R. Evid. 404(b)(1). Evidence of crimes, wrongs, or other acts is admissible, however, "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. R. 404(b)(2). As stated, in reviewing a trial court's ruling on 404(b) evidence, appellate courts "simply assess whether the district judge made an error in admitting or excluding the evidence in question." State v. Thornton , 2017 UT 9, ¶ 53, 391 P.3d 1016 (emphasis omitted).

¶12 We first address Barney's argument that there is no plausible, avowed purpose for the evidence beyond showing his propensity for bad behavior. Second, we examine whether the evidence was relevant. Third, we analyze whether the evidence was prejudicial.

I. Plausible, Avowed Noncharacter Purpose

¶13 "The threshold 404(b) question is whether the evidence has a plausible, avowed purpose beyond the propensity purpose that the rule deems improper." State v. Thornton , 2017 UT 9, ¶ 58, 391 P.3d 1016 (emphasis omitted). A trial court might conclude that the offered noncharacter purpose is a ruse. "Short of that, however, the court's job under rule 404(b) is not to balance or weigh competing (proper and improper) inferences." Id. ¶ 59. Here, the trial court concluded that the other-acts evidence had been offered for a proper purpose. Specifically, the trial court allowed evidence of the Vehicular Assault, Strangulation, and Protective Order Incidents for the noncharacter purpose of explaining Victim's state of mind-her fear of Barney. The trial court allowed evidence of the Moving Vehicle Incident to show Barney's "modus operandi" and Victim's "reaction and her fear." In this context, fear is synonymous with Victim's state of mind, a proper noncharacter purpose.

¶14 Our supreme court has clearly held that other-acts evidence showing a victim's state of mind can qualify as a noncharacter purpose. See State v. Bates , 784 P.2d 1126, 1127 (Utah 1989) (explaining that evidence was admissible where it was "elicited to describe the state of mind of the victim" to explain why the victim "was afraid of defendant" and thus "did not report the incidents sooner"); see also State v. Harter , 2007 UT App 5, ¶ 28, 155 P.3d 116 (citing Bates and holding that the victim's "state of mind-her fear of Defendant" was a "proper, noncharacter purpose"). Recently, our supreme court held in a child sex abuse case that rule 404(b) evidence was admissible where the evidence "presented a narrative of relevance to the prosecution's case-to demonstrating [a defendant's] position of power in the home, to explaining why he had such easy access to [a victim], and to suggesting why [a victim] may have waited to come forward with accusations against [the defendant]." Thornton , 2017 UT 9, ¶ 57, 391 P.3d 1016.

¶15 These holdings support the purpose for which the 404(b) evidence was admitted in this case-to show Victim's state of mind as to why she did not try to escape or quickly report the Kidnapping Incident. After the trial court initially excluded the other-acts evidence, Barney's counsel raised doubts about Victim's allegations by highlighting her reluctance to escape and her delay in reporting the Kidnapping Incident to the police. The Vehicular Assault Incident demonstrates an instance where Victim tried to resist Barney's attempt to convince her to ride in his truck and was met with escalated violence, explaining why Victim was unwilling to resist the Kidnapping Incident. The Strangulation Incident helps reveal why Victim would not want to run from or avoid Barney because avoiding him in the past had resulted in him violently attacking her. The Protective Order Incident helps show why Victim waited to report the Kidnapping Incident because Barney had previously ignored protective intervention. The Moving Vehicle Incident illustrates Barney's continued violence toward Victim, explaining why she was afraid to report the Kidnapping Incident right away. Thus, as in Bates , Harter , and Thornton , the other-acts evidence plausibly goes to the avowed noncharacter purpose of explaining Victim's state of mind and why she acted the way she did.

¶16 We therefore conclude that the Vehicular Assault, Strangulation, Protective Order, and Moving Vehicle Incidents were admitted for an appropriate noncharacter purpose. Specifically, we conclude that the other-acts evidence was properly admitted for the purpose of showing Victim's state of mind.

II. Relevance

¶17 Having determined that the other-acts evidence was admitted for a proper noncharacter purpose, we now examine Barney's challenge to the relevance of that evidence. "Evidence is relevant if ... it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Utah R. Evid. 401. "Irrelevant evidence is not admissible." Id. R. 402. "The standard for determining the relevancy of the evidence is very low, and even evidence with the slightest probative value is relevant." State v. Smedley , 2003 UT App 79, ¶ 15, 67 P.3d 1005 (cleaned up).

¶18 The Vehicular Assault, Strangulation, Protective Order, and Moving Vehicle Incidents were relevant to show Victim's state of mind and why she did not flee when she had the chance or report the incident immediately. Barney's defense counsel questioned Victim on why she did not run, why she did not try to get help, and why she did not immediately report the incident. Thus, Barney brought Victim's conduct during and after the kidnapping under scrutiny. Victim answered those questions by responding that she believed something bad would happen if she tried to escape or if she reported the kidnapping. Because these four instances of other-acts tend to make it more probable that she believed something bad would happen if she tried to escape or if she reported the crime, the evidence is relevant.

¶19 We thus see no abuse of discretion in the trial court's conclusion that the other-acts evidence is relevant.

III. Prejudice

¶20 Finally, we examine Barney's contention that the other-acts evidence was unduly prejudicial under rule 403 of the Utah Rules of Evidence. That rule states that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Utah R. Evid. 403. "Unfair prejudice results only where the evidence has an undue tendency to suggest decision upon an improper basis." State v. Miranda , 2017 UT App 203, ¶ 38, 407 P.3d 1033 (cleaned up).

¶21 Evidence of the Vehicular Assault, Strangulation, Protective Order, and Moving Vehicle Incidents was highly probative of Victim's state of mind and ultimately her motivation for not running from Barney or immediately reporting the Kidnapping Incident. The jury may well have questioned Victim's apparent hesitance to escape or her delay in reporting the crime. Because her fear of Barney was the primary reason for her delay in reporting, the other-acts evidence carried high probative value. To be sure, the presentation of the other-acts evidence carries with it some prejudicial effect. However, the danger that the evidence of these other acts would unfairly prejudice Barney was ultimately mitigated by other factors.

¶22 First, the Vehicle Assault, Strangulation, and Protective Order Incidents were "distinct from the crime he was charged with," mitigating any risk of prejudice. See State v. Thornton , 2017 UT 9, ¶ 63, 391 P.3d 1016. The similarity between charged conduct and the Moving Vehicle Incident potentially increases the danger of the jury conflating the incidents; however, the protracted nature of the charged conduct-where Barney held Victim for an entire evening while stranded on a rural road-is ultimately distinct enough that any danger of confusion over what evidence applied to what incident is minimal.

¶23 Second, the acts for which Defendant was charged-driving erratically while holding Victim's head against the center console and punching and kneeing her in the face, driving Victim to a remote area where the truck ran out of gas and threatening her with a knife, promising painful and violent death for several hours-were more egregious than the other-acts evidence, and thus the jury would not likely improperly base its decision on a desire to punish Defendant for the uncharged conduct. See State v. Reece , 2015 UT 45, ¶ 71, 349 P.3d 712 (explaining that the conduct that a defendant confessed to was more severe than the other-acts evidence admitted at trial, which weighed against concluding that the defendant was unduly prejudiced).

¶24 Third, the trial court provided a limiting instruction prohibiting the jury from convicting Barney based on the other-acts evidence. This instruction further mitigated the risk of any unfair prejudice. See State v. Trujillo , 2017 UT App 116, ¶ 22, 400 P.3d 1213.

¶25 Under these circumstances, we conclude that the trial court was well within its discretion in deciding that the probative value of this evidence was not substantially outweighed by the risk of unfair prejudice.

CONCLUSION

¶26 The trial court did not err in admitting the other-acts evidence. The evidence was admitted for a proper noncharacter purpose, was relevant, and was not unduly prejudicial.

¶27 Affirmed.

      Earlier decisions from the Utah Supreme Court required that, in situations where other-acts evidence sustains both proper and improper inferences, courts "should balance [proper and improper inferences] against each other under rule 403, excluding the bad acts evidence if its tendency to sustain a proper inference is outweighed by its propensity for an improper inference or for jury confusion about its real purpose." See State v. Verde , 2012 UT 60, ¶ 18, 296 P.3d 673, abrogated by State v. Thornton , 2017 UT 9, 391 P.3d 1016. Thus, our supreme court in Thornton altered its previous directive.

      Barney takes issue with the fact that the Moving Vehicle Incident occurred after the Kidnapping Incident for which he was charged. It is true that rule 404(b) evidence is often described as evidence of "prior acts." See, e.g. , State v. Lopez , 2018 UT 5, ¶ 38, 417 P.3d 116 ("We recognize an exception to that rule where prior acts are relevant, offered for a genuine, noncharacter purpose, and not unduly prejudicial." (cleaned up) ). Rule 404(b) itself, however, makes no reference to "prior" crimes, wrongs, or acts, but refers only to "other" crimes, wrongs, or acts. Utah R. Evid. 404(b). Many courts have recognized that other crimes, wrongs, or acts can be relevant, even if those acts occurred after the charged conduct. See United States v. Delgado , 56 F.3d 1357, 1365 (11th Cir. 1995) (noting that the principles governing rule 404(b) other-acts evidence "are the same whether the conduct occurs before or after the offense charged" (cleaned up) ); see also Ashe v. Jones , No. 98-1324, 2000 WL 263342, at *5 (6th Cir. Feb. 29, 2000) ; United States v. Morsley , 64 F.3d 907, 911 (4th Cir. 1995) ; United States v. Brown , 923 F.2d 109, 111 (8th Cir. 1991) ; Michigan v. Dreyer , 177 Mich.App. 735, 442 N.W.2d 764, 765 (1989) ; Washington v. Brown , 132 Wash.2d 529, 940 P.2d 546, 576 (1997) (en banc); Washington v. Stuivenga , No. 52024-5-I, 2005 WL 487551, at *1 (Wash. Ct. App. Feb. 22, 2005) (per curiam). Here, the Moving Vehicle Incident occurred before Victim reported the Kidnapping Incident and was relevant to explain why Victim waited so long to report the crime.

      Because we conclude that the evidence was properly admitted for the purpose of showing Victim's state of mind, we do not analyze the court's decision to allow the Moving Vehicle Incident for the purpose of showing Barney's modus operandi. See State v. Holbert , 2002 UT App 426, ¶ 34 n.5, 61 P.3d 291.

      Appellant argues in his brief: "Although strict application of [the State v. Shickles, 760 P.2d 291 (Utah 1988) ] factors is no longer required under Verde and Thornton , they are useful to ensure that the unfair prejudice does not outweigh the probative value of prior-bad-act evidence." Tethering the analysis as Barney suggests may be error. Recently our supreme court stated: "It is always error ... for a court to center its analysis on the Shickles factors, to consider itself obligated to use a particular factor or factors, or to rely inflexibly upon each Shickles factor." State v. Ring , 2018 UT 19, ¶ 23, 424 P.3d 845.

      The court in Reece examined undue prejudice under the standard of "overmastering hostility," see State v. Reece , 2015 UT 45, ¶ 71, 349 P.3d 712, which has since been renounced by the Utah Supreme Court, see State v. Cuttler , 2015 UT 95, ¶ 20, 367 P.3d 981. We rely on Reece to demonstrate only that the severity of the charged conduct, weighed against the severity of the other-acts evidence, is an appropriate consideration when analyzing undue prejudice under rule 403. We do not rely on the "overmastering hostility" standard applied in Reece .


author: TOOMEY, Judge:

text:
    Richard E. GARDINER, Appellant and Cross-appellee, v. Nels ANDERSON, Appellee and Cross-appellant.
    No. 20170551-CA
    Court of Appeals of Utah.
    Filed August 30, 2018
    Todd F. Anderson, Attorney for Appellant and Cross-appellee
    Marlin J. Grant, Logan, Attorney for Appellee and Cross-appellant
    Judge Kate A. Toomey authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   TOOMEY, Judge:

¶1 Richard E. Gardiner (Landlord) appeals the district court's grant of summary judgment in favor of Nels Anderson (Tenant). Tenant cross-appeals the court's decision to award Landlord attorney fees with respect to Landlord's motions to strike and the court's denial of Tenant's request for attorney fees as the prevailing party. We affirm the district court's grant of summary judgment in favor of Tenant because Landlord's claim fails as a matter of law. We remand to the district court to provide findings of fact and conclusions of law to support its decision to award attorney fees to Landlord for the motions to strike. We reverse the district court's conclusion that the Lease did not trigger the reciprocal attorney fees statute and remand for the court to determine whether Tenant should be awarded attorney fees as the prevailing party. We further conclude Tenant is entitled to attorney fees on appeal and remand to determine the reasonable amount of fees incurred on appeal and cross-appeal.

BACKGROUND

¶2 On November 1, 2013, Landlord and Tenant entered into a lease agreement (the Lease) for a warehouse building (the Warehouse) to last for two years until October 31, 2015. The Lease provided that Tenant was to "repair" the Warehouse "at [Tenant's] sole cost and expense, including, but not limited to, electrical fixtures, interior painting and decorating, and glass replacement." The agreed rent escalated gradually over time from $600 per month to $1,000 per month. The Lease prohibited Tenant from subleasing the Warehouse without Landlord's prior written consent. The sublease provision states:

[Tenant] shall not ... sublet or permit the leased premises or any part thereof to be used by others for any purpose, without prior written consent of [Landlord] being first obtained in each instance; provided, however, that regardless of any such assignment or sublease, [Tenant] shall remain primarily liable for the payment of the rent herein reserved and for the performance of all the other terms of this lease required to be performed by [Tenant].

¶3 Despite this provision, Tenant entered into an oral agreement to sublet the Warehouse to a subtenant (Subtenant), beginning November 1, 2013-the same day the Lease went into effect-without Landlord's written consent. Tenant and Subtenant orally agreed that Subtenant would pay $2,250 per month in rent from November 1, 2013, through October 31, 2014; and $3,000 per month from November 1, 2014, through March 31, 2015. They later signed a written agreement to sublet the Warehouse for $5,000 per month from April 1, 2015, to September 30, 2015.

¶4 In July 2015, Landlord discovered that Tenant was subletting the Warehouse and sent Tenant a letter in September 2015, giving Tenant written notice of his default of the sublease provision and giving him ten days to cure by paying Landlord $30,000. Because Tenant chose not to cure the breach, Landlord terminated the Lease pursuant to its default provisions. Tenant promptly vacated the Warehouse.

¶5 A few months later, Landlord filed a complaint, alleging that Tenant unlawfully detained the Warehouse, breached the Lease, and was unjustly enriched by the Sublease. Landlord claimed he had been damaged by the Sublease in the amount of $53,100, arguing that he "would have agreed to the Sublease if Tenant had paid Landlord the difference between Tenant's rent and what Tenant received from [Subtenant]." Landlord sought treble damages in the amount of $159,300 and reasonable attorney fees, arguing that the Sublease amounted to an unlawful detainer under Utah Code section 78B-6-802(1)(d). Alternatively, he sought $53,100 in damages for either breach of contract or unjust enrichment, stating that "it would be unjust for the Tenant to retain the benefit from the sublet rent that he received."

¶6 Tenant filed an answer and later a Motion to Dismiss or in the Alternative for Summary Judgment (Tenant's Motion for Summary Judgment). He attached a Verified Memorandum of Points and Authorities (the Verified Memorandum) in which he swore "under oath to tell the whole truth." In the Verified Memorandum, Tenant articulated material facts that were substantially similar to Landlord's complaint, including that Tenant breached the Lease, entered into a Sublease, chose not to cure the breach, and vacated in a timely fashion pursuant to the Lease's default provision. He referred to Landlord's complaint and the exhibits attached to it to support these facts. Tenant also argued that Landlord's unlawful detainer claim failed because Tenant returned possession of the Warehouse to Landlord before the term of the notice expired. He further argued that Landlord had no remedy for breach of contract because the Lease allowed Landlord to terminate the Lease and collect the $1,000 rent due each month through the end of the Lease, which included lost rents from Tenant between September 14, 2015, and October 31, 2015, but, according to Tenant, nothing in the Lease entitled Landlord to the rent from the Sublease. Finally, he argued that without evidence of an unlawful detainer or a provision in the Lease that would entitle Landlord to such damages, Landlord could not claim that Tenant was unjustly enriched from the rent collected under the Sublease.

¶7 Landlord opposed Tenant's Motion for Summary Judgment, arguing that the Verified Memorandum did not comply with rule 56 of the Utah Rules of Civil Procedure because it did "not state that the facts set forth in the pleading were true and correct to the personal knowledge of the signer," and instead "attempt[ed] to verify the entire contents of the pleading, not just the factual assertions, and some of the facts sworn were ... mere assumptions or conclusions." Landlord also "[d]isputed" many of the facts in the Verified Memorandum, essentially claiming that the facts were not relevant to the complaint or re-characterizing the way Tenant had articulated them.

¶8 Landlord then filed his own motion for summary judgment (Landlord's Motion for Summary Judgment), asserting that there was no dispute as to any material fact and arguing that subletting the Warehouse without Landlord's written consent was an unlawful detainer and a breach of contract, which "entitled [him] to judgment" for $153,600 plus reasonable attorney fees and post-judgment interest. Shortly thereafter, Tenant filed a reply memorandum in support of his own motion for summary judgment and then a memorandum in opposition to Landlord's Motion for Summary Judgment. Landlord filed motions to strike both of these replies (the Motions to Strike), claiming they were untimely filed and failed to comply with the Utah Rules of Civil Procedure. The district court heard argument on the Motions to Strike and ultimately struck Tenant's two reply memoranda for being untimely and ordered Tenant to pay Landlord attorney fees and costs related to the Motions to Strike. But the court determined that, because Tenant filed a motion for summary judgment, Landlord's Motion for Summary Judgment was opposed and the court would therefore "consider arguments and material" from the Verified Memorandum.

¶9 The district court considered both parties' motions for summary judgment. It concluded that nothing in the unlawful detainer statute or the Lease supported Landlord's claim for damages of $53,100 in rent Tenant obtained from the Subtenant. The court determined that "the only remedy [Landlord] appears to be entitled to is a declaration under [the unlawful detainer statute] that the [Lease] is forfeited due to [Tenant's] failure to perform a condition or covenant therein." Tenant complied with Landlord's notice to vacate when he elected to promptly vacate the Warehouse rather than cure the breach and therefore did not unlawfully possess it. The court further concluded that even if Tenant was in "unlawful detainer" of the Warehouse under Utah Code section 78B-6-802(1)(d) for unauthorized subletting, that section "does not specifically provide for damages for unauthorized subletting" and neither did the Lease. As a result, the court granted summary judgment in favor of Tenant and denied Landlord's cross-motion.

¶10 In light of judgment in his favor, Tenant requested attorney fees, contending that he was the prevailing party in the lawsuit because he successfully defended against Landlord's complaint. He also argued that he was entitled to attorney fees under the unlawful detainer statute because he successfully defended against the claim of unlawful detainer. Landlord challenged the request, arguing that the Lease's enforcement provision provided for attorney fees only to the party not in breach of the Lease. The enforcement provision states:

Should either party default in the performance of any covenants or agreements contained herein, such defaulting party shall pay to the other party all costs and expenses, including but not limited to, ... reasonable attorney's fee[s], including such fees on appeal, which the prevailing party may incur in enforcing [the Lease] or in pursuing any remedy allowed by law for breach hereof.

¶11 The district court denied Tenant's request, concluding that Tenant was the defaulting party and that the Lease "does not provide a basis for an award of attorney fees to ... the party in default." The court further concluded that Landlord did not become the party in default by virtue of losing the lawsuit. The court also concluded that Tenant was not entitled to attorney fees under the unlawful detainer statute, because the provision that would have allowed for such an award was not in effect until May 2017, after the complaint had been filed. Because the statute did not state that it could be applied retroactively and because the statute was not amended to clarify its meaning in response to judicial action, the court concluded Tenant was not entitled to attorney fees under that statute. (Citing Utah Code Ann. § 86-3-3 (LexisNexis 2016); Wasatch County v. Okelberry , 2015 UT App 192, ¶ 17, 357 P.3d 586.)

¶12 Landlord appeals the court's grant of summary judgment in favor of Tenant. Tenant cross-appeals the court's order requiring him to pay attorney fees for the Motions to Strike and for the denial of his request for attorney fees as the prevailing party.

ISSUES AND STANDARDS OF REVIEW

¶13 Landlord contends the district court erred in granting summary judgment in favor of Tenant in three respects. He first argues that the court should have denied Tenant's Motion for Summary Judgment "on its face" because the Verified Memorandum did not include citations to "particular parts of materials in the record" in violation of rule 56(a) of the Utah Rules of Civil Procedure. Second, he argues that Landlord's Motion for Summary Judgment should have been granted because the court should have dismissed the Verified Memorandum in its entirety based on its failure to conform with rule 56 and therefore the court could not have relied on it as a replacement for Tenant's opposition to Landlord's Motion for Summary Judgment. Third, Landlord argues that the court erred in determining that the Lease did not afford him the damages he sought.

¶14 Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). "We review the district court's grant of summary judgment for correctness and accord no deference to its conclusions of law." Dillon v. Southern Mgmt. Corp. Ret. Trust , 2014 UT 14, ¶ 21, 326 P.3d 656 (quotation simplified). "We may affirm the result reached by the [district] court if it is sustainable on any legal ground or theory apparent on the record, even though that ground or theory was not identified by the lower court as the basis of its ruling." Id. (quotation simplified).

¶15 Tenant cross-appeals and contends the district court erred in awarding attorney fees to Landlord for the Motions to Strike. Tenant further contends the court erred in denying his request for attorney fees as the prevailing party and for "defend[ing] against this unnecessary litigation" where Tenant timely vacated the Warehouse in accordance with the terms of the Lease. "Whether attorney fees are recoverable in an action is a question of law, which we review for correctness." Express Recovery Services Inc. v. Olson , 2017 UT App 71, ¶ 5, 397 P.3d 792 (quotation simplified). "We review the [district] court's determination as to who was the prevailing party under an abuse of discretion standard." Id. (quotation simplified).

ANALYSIS

I. Motion for Summary Judgment

¶16 Landlord contends the district court erred in granting summary judgment in favor of Tenant for three reasons. But because we can affirm summary judgment on any ground or theory apparent on the record, regardless of whether it was identified by the district court as the basis of its ruling, see Dillon , 2014 UT 14, ¶ 21, 326 P.3d 656, we do not address each of his arguments and instead affirm on the basis that Landlord's claim fails as a matter of law. We agree with the district court that the Lease "does not provide for damages as requested by [Landlord]."

¶17 Landlord argues that "the law must provide a remedy in damages" and that " 'damages are properly measured by the amount necessary to place the nonbreaching party in as good a position as if the contract had been performed.' " (Quoting Alexander v. Brown , 646 P.2d 692, 695 (Utah 1982).). He asserts that "it is an undisputed material fact that [he] would have agreed to the sublease if [Tenant] had paid [him] the difference between [Tenant's] rent and what [Tenant] received from [Subtenant]." For example, Landlord claims he deserves $4,000 per month for the months when Tenant was required to pay $1,000 per month for rent under the Lease and Subtenant was required to pay $5,000 per month for rent under the Sublease. Landlord argues that, had the parties entered into that agreement, he would have been paid the excess rent he now seeks. Though this might be true, we do not see how this legally entitles Landlord to the excess rent from the Sublease without a provision in the Lease providing for those damages. Instead, it appears Landlord is requesting the court to enforce "an alternative benefit to the bargain" than the agreement he reached with Tenant in the Lease based on "something he might have contracted for under different circumstances." See Toll v. Tannenbaum , 982 F.Supp.2d 541, 559 (E.D. Pa. 2013). As in Toll , this argument fails because it is a request for equitable relief that "hinges on the existence of an agreement." See id. (quotation simplified). There was no agreement to pay the difference between Tenant and Subtenant's rent and there is nothing in the record to suggest that Tenant would have agreed to Landlord's conditions for consenting to the Sublease.

¶18 Because there is no Utah case law that has addressed whether a landlord can recover excess rents obtained by a tenant through a nonconforming sublease without a provision allowing for such recovery, we requested supplemental briefing from the parties to explain how other jurisdictions have addressed this issue. Landlord has failed to provide case law from any jurisdiction that has addressed the issue with facts similar to this case that would support his request for damages. He cites Long Building v. Buffalo AnthraciteCoal Co. , 190 Misc. 97, 74 N.Y.S.2d 281 (N.Y. Special Term 1947), in which a landlord sued a tenant for breach of lease for subletting a portion of the property without the landlord's consent. Id. at 282. The landlord claimed he had "no adequate remedy at law, and, therefore, demand[ed] judgment for an accounting for the sums of money received by the [tenant] from the subtenant." Id. But the court explained that "[i]t is well settled that where an adequate remedy at law is provided, the reason for granting equitable relief disappears[,] and if an equitable action does not lie, for the reason that the plaintiff has an adequate remedy at law, the defendant may, before answer, move to dismiss the complaint upon that ground." Id. (quotation simplified).

¶19 Here, Landlord not only had an adequate remedy at law explicitly provided for under the Lease, he also pursued that remedy, and Tenant complied. Landlord first sent a notice to Tenant to cure the default by paying $30,000 and evicting Subtenant. When Tenant did not comply, Landlord sent another notice stating: "Because you did not cure the default ... I hereby exercise my right, pursuant to ¶ 22(C)(1) of the Lease, to terminate the Lease and hereby notify you that the Lease is terminated. Pursuant to ¶ 22(C)(1) of the Lease, you must 'surrender possession of the premises immediately.' "

¶20 Because Landlord pursued an adequate remedy at law for Tenant's breach, because the Lease did not provide for excess rent as damages for a nonconforming sublease, and because Landlord has not articulated any means by which he was actually damaged or injured by the Sublease, we conclude that Landlord's claim fails as a matter of law. We therefore affirm the district court's grant of summary judgment in favor of Tenant and the denial of Landlord's motion for summary judgment.

II. Attorney Fees

A. Motions to Strike

¶21 Tenant asserts on cross-appeal that the district court erred in ordering Tenant to pay attorney fees for the Motions to Strike. "Whether attorney fees are recoverable in an action is a question of law, which we review for correctness." Federated Capital Corp. v. Haner , 2015 UT App 132, ¶ 9, 351 P.3d 816 (quotation simplified). To the extent that the district court exercised its discretion to award attorney fees under either statute or one of the Utah Rules of Civil Procedure, we review its decision for an abuse of discretion. See id. ¶¶ 9-10. Here, the court failed to provide any findings of fact or conclusions of law to support the award. It is unclear whether the fees were awarded under a provision of the Lease, a statute, or one of the Utah Rules of Civil Procedure. This is concerning, because Landlord never requested attorney fees in either of his Motions to Strike. We therefore remand to the district court to revisit whether attorney fees for the Motions to Strike are appropriate and, if so, to supplement the order with findings of fact and conclusions of law to support its decision.

B. Reciprocal Attorney Fees

¶22 Tenant further contends on cross-appeal that the district court erred in denying attorney fees to Tenant as the prevailing party. We agree.

¶23 Although we review whether an award of attorney fees is appropriate for correctness, "we review certain related issues for an abuse of discretion," such as "the determination of which party prevailed in a civil action." Id. (quotation simplified).

¶24 Utah Code section 78B-5-826 provides that a court may award costs and attorney fees to the prevailing party in a civil action that is based upon a written contract and that written contract "allow[s] at least one party to recover attorney fees." Utah Code Ann. § 78B-5-826 (LexisNexis 2012) ; see also Haner , 2015 UT App 132, ¶ 11, 351 P.3d 816 ("Under Utah's reciprocal attorney fee statute, courts may award attorney fees to the prevailing party of a contract dispute so long as the contract provided for the award of attorney fees to at least one of the parties[.]"). But see Blackmore v. L & D Dev. Inc. , 2016 UT App 198, ¶¶ 39-43, 382 P.3d 655 (explaining that a district court erred when relying on a "prevailing party" standard where the contract included only "defaulting party" language).

¶25 Here, the enforcement provision of the Lease provides that the "defaulting party shall pay to the other party all costs and expenses, including but not limited to, a reasonable attorney's fee including such fees on appeal, which the prevailing party may incur in enforcing [the Lease] or in pursuing any remedy allowed by law for breach hereof." (Emphasis added.) Although this language provides that the defaulting party must pay the prevailing party, "Utah courts generally apply a common sense flexible and reasoned approach to the interpretation of contractual 'prevailing party' language." See Express Recovery Services Inc. v. Olson , 2017 UT App 71, ¶ 10, 397 P.3d 792 (quotation simplified) (quoting A.K. & R. Whipple Plumbing & Heating v. Guy , 2004 UT 47, ¶ 14, 94 P.3d 270 ).

¶26 The district court determined that "the fact that [Landlord] pursued damages against [Tenant] that were ultimately unsuccessful" does not translate into an award of attorney fees to Tenant because, "[a]s in Blackmore , 'this provision clearly provides that the party who defaults is liable for attorney fees' and it would be error for this Court to award attorney fees by deeming [Tenant] as the prevailing party under the reciprocal attorney fee statute." (Quotation simplified.) We disagree. In Blackmore , the contract provided only "defaulting party" language and not "prevailing party" language. Here, the Lease included both. And, under the circumstances of this case, when "apply[ing] a common sense flexible and reasoned approach to the interpretation of contractual 'prevailing party' language" of the Lease, Tenant could have received costs and attorney fees as the prevailing party. See Express Recovery Services Inc. , 2017 UT App 71, ¶ 10, 397 P.3d 792 ; see also Hooban v. Unicity Int'l Inc. , 2012 UT 40, ¶ 12, 285 P.3d 766 (explaining that the reciprocal attorney fees statute "consists of a conditional if/then statement: (a) If the provisions of a written contract allow at least one party to recover attorney fees in a civil action based upon the contract, (b) then a court may award attorney fees to either party that prevails"). Tenant successfully defended against the complaint and prevailed on summary judgment because Landlord was not entitled to judgment either under the Lease or Utah law.

¶27 We conclude that the district court erred in determining that the Lease did not trigger the reciprocal attorney fee statute, because the enforcement provision of the Lease awarded attorney fees to the prevailing party and Tenant prevailed against Landlord's complaint. See Hooban , 2012 UT 40, ¶ 12, 285 P.3d 766. Although Tenant was the defaulting party, he had already cured the default pursuant to the explicit requirements of the Lease by the time Landlord filed the complaint, and Tenant was the prevailing party in enforcing the Lease and defending against Landlord's claims under the unlawful detainer statute and breach of contract. We therefore remand to the district court to determine whether Tenant should be awarded attorney fees for successfully defending against Landlord's complaint.

¶28 Tenant has also requested attorney fees on appeal. Generally, "when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." Golden Meadows Props., Inc. v. Strand , 2010 UT App 258, ¶ 13, 241 P.3d 371 (quotation simplified). Although Tenant was not awarded attorney fees below, "we have held that such fees may have been warranted and remand for further consideration of the issue." See Kimball v. Kimball , 2009 UT App 233, ¶¶ 50-52, 217 P.3d 733 (holding that attorney fees may have been warranted below and remanding to the district court for factual findings to support an award of attorney fees to the husband, but also concluding that the husband was not entitled to attorney fees incurred on appeal because he did "not substantially prevail on appeal"). We therefore conclude Tenant is entitled to attorney fees incurred on appeal for substantially prevailing on appeal. See id.

CONCLUSION

¶29 We affirm the district court's grant of summary judgment in favor of Tenant because Landlord's claim fails as a matter of law. We reverse the district court's conclusion that the Lease did not trigger the reciprocal attorney fee statute and remand for the court to determine whether Tenant should be awarded attorney fees for successfully defending against Landlord's complaint and successfully enforcing the Lease. We further conclude that Tenant is entitled to attorney fees on appeal, as well as on cross-appeal, because he has substantially prevailed on appeal and "we have held that such fees may have been warranted" below. See Kimball , 2009 UT App 233, ¶¶ 50-52, 217 P.3d 733. We also remand for the court to revisit its decision regarding the award of attorney fees to Landlord for the Motions to Strike. If the court determines that the award is appropriate, it must provide findings of fact and conclusions of law to support its decision.

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

      We note that Landlord's complaint and motion for summary judgment also included "mere assumptions or conclusions," the most notable being that his statement of facts asserted that Landlord "would have agreed to the sublease if [Tenant] had paid [Landlord] the difference between [Tenant's] rent and what [Tenant] received from [Subtenant]."

      For example, Tenant's Verified Memorandum stated that he did not hear from Landlord after Tenant vacated until he was served with a summons in May 2016. Landlord "[d]isputed" this fact and referred to his own affidavit stating that there was an email thread between Landlord and Tenant about an event unrelated to the dispute regarding the Lease, the Sublease, or the Warehouse. It would not be unreasonable to infer that Tenant's stated fact meant that he had not heard from Landlord with respect to the breach of the Lease or Landlord's request for the excess rent as damages as a consequence of that breach until he was served with a summons.

      Landlord's calculation of damages in his motion for summary judgment differs from the amount articulated in his complaint. Because we conclude Landlord was not entitled to any of his claimed damages, we do not address this discrepancy.

      Even in situations where a motion for summary judgment is unopposed, the moving party bears the burden of showing that it is entitled to summary judgment as a matter of law by demonstrating it is entitled to the remedy it seeks either under a contract or law. Utah R. Civ. P. 56(a). Summary judgment may be granted to a nonmoving party even if the nonmoving party did not file a memorandum in opposition to the moving party's motion for summary judgment. See id. R. 56(f)(1) (explaining that a court may enter judgment "independent of the motion" and may "grant summary judgment for a nonmoving party" "[a]fter giving [the nonmoving party] notice and a reasonable time to respond"). In addition, with respect to cross-motions for summary judgment, as is relevant here, each party "must establish its own entitlement to summary judgment rather than simply rely on the other party's failure on its own motion." Martin v. Lauder , 2010 UT App 216, ¶ 7, 239 P.3d 519. Further, this court has determined that "[c]ross-motions for summary judgment do not ipso facto dissipate factual issues, even though both parties contend that they are entitled to prevail because there are no material issues of fact." Id. ¶ 8 (quotation simplified). "Rather, cross-motions may be viewed as involving a contention by each movant that no genuine issue of fact exists under the theory it advances, but not as a concession that no dispute remains under the theory advanced by its adversary." Id. (quotation simplified). "In effect, each cross-movant implicitly contends that it is entitled to judgment as a matter of law, but that if the court determines otherwise, factual disputes exist which preclude judgment as a matter of law in favor of the other side."Id. (quotation simplified).

      Effective May 9, 2017, the unlawful detainer statute was amended to add a subsection that states: "In an action under this chapter, the court may award costs and reasonable attorney fees to the prevailing party." Utah Code Ann. § 78B-6-811(5) (LexisNexis Supp. 2017). Prior to the amendment, only one subsection of the statute included attorney fees language: "The judgment shall be entered against the defendant for the rent, for three times the amount of the damages assessed under Subsections (2)(a) through (2)(e), and for reasonable attorney fees." Id. § 78B-6-811(3) (2012).

      Landlord further contends the district court erred in denying his motion for summary judgment because it was unopposed. We note, however, that in Landlord's Motion for Summary Judgment he cited the Verified Memorandum in his statement of facts to support the factual assertion of the amount of rent Tenant collected from Subtenant under the Sublease. He therefore relied on a document, the Verified Memorandum, that he asserts the court should not have considered in determining whether there was a dispute as to any material fact. We decline to address this claim for two reasons. First, as discussed infra ¶¶16-20, Landlord's claim fails as a matter of law, because the remedy he seeks is not available under the Lease or case law from any jurisdiction. Second, the district court has discretion in requiring compliance with briefing requirements under rule 56 of the Utah Rules of Civil Procedure, see Bluffdale City v. Smith , 2007 UT App 25, ¶ 5, 156 P.3d 175, and could therefore review the Verified Memorandum because it complied with the purpose of that rule and was beneficial to the court's determination.

      On appeal, Landlord has abandoned his unlawful detainer claim and elected to proceed on the court's ruling only with respect to his claim for damages under the breach of the Lease.

      We take this opportunity to address some confusion raised by Landlord as to the applicable standard of review. Use of the terms "for correctness," "de novo," and "correction of error" under the Issues and Standards of Review sections of our opinions mean that we afford "no deference" to the district courts' rulings with respect to their legal conclusions. See Salt Lake County v. Holliday Water Co. , 2010 UT 45, ¶ 14, 234 P.3d 1105 ("We review a summary judgment determination for correctness, granting no deference to the district court's legal conclusions." (quotation simplified) ); Innerlight, Inc. v. Matrix Group, LLC , 2009 UT 31, ¶ 8, 214 P.3d 854 ("We review a district court's grant of summary judgment de novo, considering the record as a whole, with no deference afforded to the legal conclusions of the district court."); Raile Family Trust ex. rel. Raile v. Promax Dev. Corp. , 2001 UT 40, ¶ 8, 24 P.3d 980 ("On appeal from the district court's ruling on summary judgment, we apply a correction of error standard, affording the [district] court's ruling no deference.").

      Landlord filed a motion to dismiss Tenant's cross-appeal with respect to this issue. Landlord contends the issue is "moot" because Tenant has already paid the attorney fees related to the Motions to Strike. In support, Landlord cites rule 58B(c) of the Utah Rules of Civil Procedure and Richards v. Brown , 2012 UT 14, 274 P.3d 911, abrogated on other grounds by Utah Res. Int'l, Inc. v. Mark Techs. Corp. , 2014 UT 59, 342 P.3d 761. But his reliance on these sources is misplaced. Under rule 58B(c), "[s]atisfaction of a judgment, whether by acknowledgment or order, discharges the judgment, and the judgment ceases to be a lien as to the debtors named and to the extent of the amount paid."Utah R. Civ. P. 58B(c). This means that the party who was paid the judgment cannot seek more damages for the same judgment from the same debtor (that is, the person who paid the judgment) after accepting the payment. As applied to this case, Landlord could not appeal any claimed error in the amount of attorney fees awarded for preparing the Motions to Strike, because Tenant paid the attorney fees he was ordered to pay to satisfy the judgment and Landlord has accepted those fees. The rule does not, on its face, prohibit Tenant, as the debtor, from appealing the amount or the order.
      Similarly, Landlord's use of Richards is misplaced. Landlord selectively quoted a "general rule" that did not apply in Richards and does not apply in this case. The Richards court explained, "The general rule is that if a judgment is voluntarily paid , and is accepted, and a judgment is thereby satisfied, the controversy has become moot and the right to appeal is waived." 2012 UT 14, ¶ 13, 274 P.3d 911 (emphasis added) (quotation simplified). But the Richards court determined that, although the appellant had accepted payment as satisfaction of the judgment of one of his claims, he did not waive his right to appeal because "the appeal is waived only for the specific claims upon which payment is accepted." Id. ¶¶ 13-16. The Richards court did not discuss whether a party who pays a judgment under protest is precluded from appealing whether the court properly ordered the payment. To the contrary, the Utah Supreme Court has clarified that, "although the general rule that voluntary payment of a judgment waives one's right to appeal is still valid, where a judgment debtor's intention of preserving his right to appeal is made to appear clearly on the record, he does not waive his right to appeal." Mark Techs. Corp. , 2014 UT 59, ¶ 33, 342 P.3d 761 (quotation simplified).
      Here, although Tenant paid the fees, he did so under protest and is therefore not precluded from appealing the district court's order with respect to the propriety of those fees. See id. Tenant objected to the award of attorney fees to Landlord, requested the court stay the order awarding attorney fees until after a decision on appeal, and then filed a notice of cross-appeal with the intent to challenge that award, as well as the court's failure to award Tenant attorney fees for successfully defending the case. We conclude Landlord's argument is without merit and address both of Tenant's attorney fees issues.

      Landlord also contends he "should have been awarded reasonable attorney's fee and costs and expenses where [Tenant] was found to have breached [the Lease] and thus was in default in the performance of [the Lease]." (Quotation simplified.) He asserts the issue was preserved because he requested reasonable attorney fees in Landlord's Motion for Summary Judgment, but that the court "did not address the issues, however, in its [ruling], presumably because, having held that [the Lease] does not provide for damages as requested by [Landlord], [Landlord] was also not eligible for a reasonable attorney's fee." This argument is unpreserved. "An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it." Patterson v. Patterson , 2011 UT 68, ¶ 12, 266 P.3d 828 (quotation simplified). We will not address an unpreserved issue on appeal unless the appellant argues that an exception to the preservation rule applies. Id. ¶¶ 12-13. Although Landlord vaguely requested reasonable attorney fees in his motion for summary judgment-stating that his damages included "reasonably incurred attorney fees (provided for by contract)"-he did not argue below that the court improperly failed to rule on his request for attorney fees, and he failed to provide any argument below for why the Lease afforded him attorney fees even in the event summary judgment was granted in favor of Tenant as the defaulting party. He has also failed to argue an exception to the preservation rule. We therefore do not address the issue on appeal.

      We are perplexed by Landlord's argument that the remedy he pursued under the Lease-either that Tenant pay $30,000 and evict Subtenant to cure the breach or vacate the premises and pay the rent due for the remainder of the Lease, which Tenant did-has not placed Landlord in the same position as Landlord would have been in if Tenant never breached the Lease.

      Landlord also cites Theatre Row Phase II Associates v. National Recording Studios, Inc. , 291 A.D.2d 172, 739 N.Y.S.2d 671 (2002). In that case, the court stated, "We perceive no logical support for the absolute rule relied upon by [the tenant] that damages for breach of a covenant against unauthorized subletting may under no circumstances include any of the rental fees collected by the tenant from its subtenant." Id. at 175, 739 N.Y.S.2d 671. The court concluded that, in that "particular instance[,] it [was] especially inappropriate" to determine that excess rent was not a consequential damage of an illegal sublease, "because the terms of the lease tend[ed] to support [the landlord's] right to claim entitlement to the excess rents collected by the tenant from its subtenant beyond the amount payable to the landlord." Id. at 176, 739 N.Y.S.2d 671. This was because "the contract [gave] the landlord the option to sublease any space the tenant propose[d] to sublease," and it was therefore "possible to infer that the parties intended to give the landlord the right to any expected profits that could be derived from a sublet." Id.
      Landlord's supplemental brief uses this case to support a new argument under a different provision of the Lease-paragraph 22(C)(4)-for his ability to collect the excess rent obtained under the Sublease. Landlord never argued in his opening brief on appeal, let alone to the district court in Landlord's Motion for Summary Judgment, that paragraph 22(C)(4) governs whether he is entitled to the damages he seeks. It would be unfair to entertain this new argument because Tenant did not have an opportunity to respond. Cf. Allen v. Friel , 2008 UT 56, ¶ 8, 194 P.3d 903 (explaining that the requirement that "an appellant's reply brief shall be limited to answering any new matter set forth in the opposing brief" is "rooted in considerations of fairness" because "if new issues could be raised in a reply brief, the appellee would have no opportunity to respond to those arguments" (quotation simplified) ). We conclude this requirement applies equally to new arguments raised in a supplemental brief that responds to the court's request for case law that supports the arguments already made by the appellant. Cf. id. ("It is well settled that issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court." (quotation simplified) ); see also 4 C.J.S. Appeal & Error § 737 (2018) ("Ordinarily only such points as are made and relied on in the original briefs will be considered by the reviewing court in disposing of the case, and supplemental, additional, or amended briefs setting up errors not specified in the original briefs cannot be filed without leave of court or consent of the opposite party, except to the extent that the assignments of error suggest fundamental error." (quotation simplified) ). We also note, with some irony, that Landlord filed a motion to strike Tenant's supplemental brief for this exact reason, requiring Tenant to respond to the motion.

      Landlord argues that, although Tenant never claimed to have cured the breach by paying Landlord the excess rent obtained under the Sublease, the "district court erred as a matter of law" when it "nonetheless concluded, without citing any authority, that because the 'lease agreement does not provide for damages,' [Tenant] was entitled to summary judgment." Landlord's entire argument below with respect to damages resulting from the breach of the Lease amounted to three paragraphs in which he (1) restated the sublease provision and the notice to cure provision of the Lease; (2) included his own statement that he would have given consent to a sublease based on the condition that he receive the excess rent from the sublease; and (3) provided two quotes from cases that stated that "[i]t is axiomatic in the law that for every wrong there is a remedy," Kramer v. Pixton , 72 Utah 1, 268 P. 1029, 1032 (1928), and "[d]amages are properly measured by the amount necessary to place the nonbreaching party in as good a position as if the contract had been performed," Alexander v. Brown , 646 P.2d 692, 695 (Utah 1982). First, the court was not required to support its decision with legal authority that the Lease did not provide for the damages Landlord sought, because Landlord did not direct the court to any language in the Lease that provided for such damages. Second, it was Landlord's burden to provide an argument and supporting legal authority to show that he was entitled to summary judgment as a matter of law. See Utah R. Civ. P. 56(a) ; id. R. 7(d)(1)(B). Similar to our requirements on appeal that an appellant's arguments must be adequately briefed so as not to "dump the burden of argument and research" on the court, it is not the district court's burden to research and develop arguments for a moving party and then rebut them. Cf. Johnson v. Johnson , 2014 UT 21, ¶ 20, 330 P.3d 704.

      Tenant also contends the district court erred in denying his request for attorney fees as the prevailing party in an unlawful detainer action, see Utah Code Ann. § 78B-6-811(5) (LexisNexis Supp. 2017), and for filing the complaint and corresponding motions in bad faith, see id. § 78B-5-825 (2012). Because we conclude the court erred in determining that the reciprocal attorney fee statute did not apply and remand for consideration of whether Tenant should be awarded attorney fees for successfully defending against the complaint and prevailing on summary judgment, we decline to address the merits of these arguments.

      We also take this opportunity to note that Landlord engaged in a pattern of filing motions below and on appeal that appear to be for purposes of delay or increasing the costs of litigation, further supporting our conclusion that Tenant likely should have been awarded attorney fees under the Lease as the prevailing party. Landlord's responses to Tenant's motions, the Motions to Strike below and on appeal, and Landlord's motion to dismiss the cross-appeal all claimed to be based on strict compliance with the Utah Rules of Civil Procedure and the Utah Rules of Appellate Procedure. We agree that compliance with the rules is important, but the extent to which Landlord has attempted to enforce them is not well taken. We agree with Tenant that on numerous occasions, Landlord, through his attorney, has "belittled" Tenant and filed "needless motions to strike" in an attempt to "avoid ... full briefing on the merits of the case."
      Indeed, our review of the record shows that many of these filings appeared to "harass [Tenant] or to cause unnecessary delay or needless[ly] increase the cost of litigation." See Utah R. Civ. P. 11(b)(1) ; Utah R. App. P. 40(b)(1). For example, Tenant filed a notice of supplemental authority with the district court, informing the court of a recent opinion issued by this court, Express Recovery Services Inc. v. Olson , 2017 UT App 71, 397 P.3d 792. In this notice, Tenant explained how Express Recovery supported his claim for attorney fees as the prevailing party in a contract case where the contract awards attorney fees to the prevailing party. See id. ¶¶ 17-19 (concluding that a party was the prevailing party below, vacating the district court's order denying that party's request for attorney fees, and remanding to the district court to determine reasonable attorney fees). Tenant also attached to the notice a printed copy of the case. Landlord filed a response, arguing that the court should not consider the notice, because it did not comply with rule 7(i) of the Utah Rules of Civil Procedure. Specifically, he argued:
      Rule 7(i) provides in pertinent part that, when a party files a notice of citation to supplemental authority, that notice must state "the citation to the authority the page of the motion or memorandum or the point orally argued to which the authority applies, and the reason the authority is relevant." [Tenant's] notice does not state "the page of the motion or memorandum to which the authority applies." The court should thus not consider [his] notice.
      (Emphasis added.) (Quotation simplified.) It is obvious from the language of the notice that Tenant was referring to his motion requesting attorney fees as the prevailing party on summary judgment. Therefore, the notice was sufficient for the purpose of rule 7(i). Landlord's response to the notice resulted in Tenant filing a reply to the notice to rebut this argument. Landlord then filed a motion to strike this reply, arguing that only the notice and a response by the opposing party is permitted under rule 7(i) and "no other memorandum is permitted." Landlord also requested time at an upcoming hearing to address the issue. Although the district court agreed with Landlord, we are perplexed as to the reasoning because nothing in rule 7(i)prohibits a reply under these circumstances. See Utah R. Civ. P. 7(i). We are unaware of any Utah case law that has addressed this issue.
      On appeal, Landlord filed a motion to dismiss Tenant's cross-appeal, arguing that Tenant's docketing statement included argument in violation of rule 9 of the Utah Rules of Appellate Procedure. This court denied this motion to dismiss because "[t]he docketing statement [was] sufficient to meet the purposes stated in rule 9(a)." Landlord then filed a motion to dismiss Tenant's cross-appeal with respect to whether the court erred in awarding attorney fees to Landlord on the Motions to Strike, arguing the issue was moot because Tenant had already paid those fees. We rejected that argument above, explaining that Landlord failed to cite relevant case law in support of his argument and that Utah case law specifically states that this type of issue is not moot when the party objected on the record to the award and paid the fees under protest. See supra note 10. Landlord also filed a motion to strike Tenant's supplemental brief, yet, as we noted previously, Landlord's supplemental brief included the same errors that he claimed Tenant's brief included. See supra ¶18 & note 13. And in his reply brief on appeal, Landlord argued that one of the facts Tenant had stated in his response brief about an email from October 27, 2014, in which he informed Landlord about a neighbor (Subtenant) who had suffered a fire and needed to use the Warehouse, "not only [was] not before the district court, but [was] an erroneous characterization of the [email]." This fact was before the district court, not only because it was supported in an exhibit to the Verified Memorandum, but also because Landlord referred to it in his own affidavit in support of his opposition to Tenant's Motion for Summary Judgment. And our review of that email supports Tenant's explanation that a neighbor suffered a fire and would be using the Warehouse to "house supplies until he has time to get his facility rebuilt" and that Tenant "just wanted to let [Landlord] know of [his] intentions and use of the building in order to maintain transparency."
      The record is replete with examples such as these and many appear to have served to delay the proceedings, distract the court from the merits of the issues, mislead this court on appeal, and increase the costs of litigation. See Utah R. Civ. P. 11(b)(1) ; Utah R. App. P. 40(b)(1).