IHC v. D&K

2008 UT 73
AMENDED OPINION
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
IHC Health Services, Inc., a 	No. 20061017
Utah non-profit corporation,
Plaintiff and Appellee,
v.
D & K Management, Inc., a Utah 	F I L E D
corporation,
Defendant and Appellant. 	October 24, 2008
---
Third District, Salt Lake
The Honorable Robert K. Hilder
No. 990905693
Attorneys: 	D. Matthew Moscon, Lauren A. Shurman, Salt Lake City,
for plaintiff
Michael N. Zundel, James C. Swindler, Glenn R.
Bronson, Salt Lake City, for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	In this case, a landlord, IHC Health Services, Inc.
(“IHC”), seeks to eject its tenant, D & K Management (“D & K”),
for breach of its lease (the “Lease”) because of a late rental
payment. 	The district court granted summary judgment in favor of
IHC and awarded attorney fees to IHC pursuant to a provision in
the Lease. 	D & K appeals, asserting that the district court
erred when it (1) held that, as a matter of law, IHC did not
waive its right to terminate the Lease; (2) refused to consider
D & K’s untimely-raised defense of substantial compliance; and
(3) awarded attorney fees to IHC. 	We conclude that the district
court appropriately granted summary judgment in favor of IHC on
the issue of waiver because, under the totality of the
circumstances, no reasonable fact finder could conclude that IHC
intended to waive its right to terminate the Lease. 	We also

No. 20061017 	2
affirm the district court’s decision to refuse to consider
D & K’s untimely-raised substantial compliance defense. 	But we
reverse the district court’s award of attorney fees.
BACKGROUND
¶2 	The parties do not dispute the underlying material
facts. 	In 1994, D & K leased space in a shopping center in
Murray, Utah, from Medical Plaza 9400. 	D & K uses the space to
operate a sexually oriented business, the Southern Xposure
private club. 	In January 1998, IHC purchased the shopping center
from Medical Plaza 9400 with plans to build a state-of-the-art
medical complex. 	IHC notified D & K by letter that it had
purchased the shopping center.
¶3 	The initial term of the Lease was five years, but it
includes three five-year renewal options. 	The Lease provides
that the tenant must pay rent “in advance of the first day of
each calendar month during the term of the Lease.” 	In addition,
the Lease provides that “fail[ure] to pay any rental or any other
sum due hereunder within ten [10] days after the same / [sic]
shall be due” constitutes default. 	And upon occurrence of
default, the landlord may “[t]erminate this Lease by written
notice to the Tenant . . . . 	[A]nd the Landlord may recover from
Tenant all damages it may incur by reason of Tenant’s breach,
including . . . reasonable attorney’s fees.” 	Section 23 of the
Lease also provides as follows:
In the event that at any time during the term
of this Lease either Landlord or the Tenant
institutes any action or proceeding against
the other relating to the provisions of this
Lease or any default hereunder, then the
unsuccessful party in such action or
proceeding agrees to reimburse the successful
party for the reasonable expenses of such
action including reasonable attorney’s fees,
incurred therein by the successful party.
¶4 	IHC sought to terminate the Lease after D & K failed to
pay rent for March 1998 during that month. 	D & K did, however,
deliver a check for its rental payment for April 1998 on April 8.
IHC accepted and cashed the check. 	D & K still had not sent the
March 1998 rental payment on April 14, 1998, when IHC sent D & K
a Notice of Default and Forfeiture of Lease Agreement. 	The
notice directed it to surrender possession of the leased premises
within thirty days. 	On April 16, having received the Notice of
Default, D & K attempted to deliver a check for the March 1998

3 	No. 20061017
rental payment to IHC. 	Although IHC’s property managers accepted
D & K’s March rent check at their office and issued a receipt,
IHC promptly returned the check uncashed to D & K on April 17,
1998.
¶5 	D & K asserts that IHC waived its right to terminate
the Lease by accepting and cashing the check for the April 1998
rental payment and by sending certain correspondence to D & K.
From June 1998 to January 1999, IHC sent numerous letters and
invoices to D & K demanding, among other things, that D & K pay
increased rent and maintain insurance according to the terms of
the Lease. 	In each of these letters, IHC addressed D & K as
“Dear Tenant.” 	D & K timely sent rent checks each month from May
1998 until March 1999. 	IHC retained the checks but did not cash
them.
¶6 	In March 1999, the parties entered into an agreement to
hold all rental payments in escrow and preserve the parties’
then-existing rights. 	Shortly thereafter in May 1999, IHC sued,
alleging breach of the Lease. 	IHC sought ejectment, a
declaratory judgment that D & K was in breach, damages for
breach, and attorney fees. 	D & K’s answer invoked ten
affirmative defenses, including waiver, estoppel, and
unconscionability. 	D & K did not specifically invoke the defense
of substantial compliance in its Answer.
¶7 	IHC moved for a declaratory judgment that D & K had
forfeited the Lease and that all of D & K’s affirmative defenses
failed as a matter of law. 	IHC pointed out that D & K admitted
that it had paid the March rent late. 	IHC argued that it did
not, as a matter of law, waive its right to terminate the Lease.
D & K moved for summary judgment in its favor on the affirmative
defenses of waiver and equitable estoppel. 	Although IHC’s motion
sought declaratory judgment that D & K had forfeited the Lease
and that all of D & K’s defenses failed as a matter of law,
D & K’s Opposition and Motion for Summary Judgment raised only
waiver and equitable estoppel as defenses. 	D & K did not raise
the doctrine of substantial compliance in any pleading or motion
in response to IHC’s motion.
¶8 	The district court granted summary judgment in favor of
IHC, ruling that D & K’s waiver defense failed as a matter of law
and that it had forfeited the Lease. 	The district court did not
directly address D & K’s equitable estoppel defense. 	But its
memorandum decision erroneously noted that IHC had returned the
April 1998 rent check to D & K uncashed. 	D & K appealed the
ruling to this court.

1 2003 UT 5, 73 P.3d 320.
2 Id. ¶ 10.
3 Id. ¶ 7 (internal quotation marks omitted).
4 Id. ¶ 9.
5 Id.
6 Utah R. Civ. P. 54(b).
No. 20061017 	4
¶9 	This court took up the matter in IHC Health Services,
Inc. v. D & K Management, Inc. (“D & K I”). 1 	We ruled that
although the district court failed to address D & K’s equitable
estoppel argument, the argument failed as a matter of law. 2 	As
to waiver, we reiterated the rule from our previous cases that
although waiver is intensely fact dependent, “a fact finder need
only determine whether the totality of the circumstances warrants
the inference of relinquishment.” 3 	We stated that because the
district court had misapprehended the fact that IHC accepted the
April 1998 rental payment, it could not have properly considered
the totality of the circumstances. 4 	Therefore, we remanded the
case to the district court for reconsideration in light of the
correct facts. 5
¶10 	On remand, IHC filed a new Motion for Summary Judgment
on its claims for forfeiture, declaratory judgment, and breach of
contract. 	D & K argued only waiver as a defense in its
Opposition to Summary Judgment and did not raise the doctrine of
substantial compliance. 	The district court again granted summary
judgment in favor of IHC and ruled that it was entitled to
judgment as a matter of law on its claims for forfeiture,
declaratory judgment, and breach of contract.
¶11 	D & K first asserted substantial compliance as a
defense to forfeiture when IHC moved for a certification of
finality under rule 54(b) to recover possession of the property. 6
The district court refused to hear the substantial compliance
argument because the claim of forfeiture had already been
decided. 	The district court certified the judgment as final, and
D & K appealed.
¶12 	Although the district court certified the decision as a
final judgment, the court of appeals dismissed the appeal for
lack of jurisdiction and remitted the case to the district court
to resolve the remaining issues in the case, including attorney
fees and damages. 	After the remittitur from the court of

5 	No. 20061017
appeals, D & K moved the district court to reconsider the
forfeiture claim in light of its substantial compliance argument.
The district court denied the motion, holding that D & K
never timely raised this argument and is
precluded from making it at this late date on
grounds of res judicata and/or specifically
law of the case . . . . 	It is undisputed
that [D & K] could have raised this defense
at some earlier point, and certainly prior to
or at the time of appealing the first
judgment entered by this court’s predecessor
(and again by this court following remand by
the Utah Supreme Court, which latter decision
[D & K] now wants reconsidered). 	In fact,
[D & K] did not previously raise or argue the
defense of substantial compliance. 	It had a
fair opportunity to present and have
determined the defense of substantial
compliance, but elected not to do so.
The district court held that it did “not believe that it ha[d]
the right or discretion to consider new issues that could have
been raised, but were not, from the point of remand.” 	It noted
that it would decline to consider D & K’s substantial compliance
argument even if it had discretion because, having been briefed
on the defense, it “d[id] not find that D & K ha[d] presented the
Court with facts that would support a substantial compliance
defense.” 	The district court also concluded that none of the
exceptions to the law of the case doctrine excused D & K’s
failure to argue substantial compliance.
¶13 	IHC sought to resolve the case more expeditiously by
voluntarily dismissing its claim for damages resulting from
D & K’s breach of the Lease and moving the court to award
attorney fees. 	IHC expressly waived its claim to attorney fees
under section 17.2(c) of the Lease, which provides for damages
resulting from the tenant’s breach. 	Instead, IHC sought attorney
fees under section 23 of the Lease, which provides for an award
of attorney fees to the prevailing party “in the event that at
any time during the term of this Lease either the Landlord or the
Tenant institutes any action or proceeding against the other
relating to the provisions of this Lease or any default
hereunder.” 	D & K argued that IHC was not entitled to attorney
fees under section 23 of the Lease because, under IHC’s theory of
the case, the Lease terminated prior to IHC filing the lawsuit.
In addition, D & K objected to the amount of the fee award
because IHC had submitted fees for matters, such as the appeal,

7 Utah R. Civ. P. 56(c).
8 Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991).
No. 20061017 	6
on which it did not prevail. 	Finally, D & K argued that IHC
should not be awarded fees because it had failed to carry its
burden of proving the reasonableness of its fees. 	The district
court held that the Lease had not reached the end of its stated
five-year term and that, until the district court determined that
IHC’s ejectment action was successful, the Lease was not
terminated. 	After IHC revised and categorized its fees in
response to D & K’s objections, the district court awarded IHC
attorney fees and costs in the amount of $307,264.90. 	D & K
appeals, and we have jurisdiction pursuant to Utah Code section
78A-3-102(3)(j) (2008).
ANALYSIS
¶14 	We will first discuss whether the district court
correctly granted summary judgment to IHC on the issue of waiver.
We will then consider whether the district court was within its
discretion in refusing to reopen the issue of forfeiture to
consider D & K’s untimely-raised substantial compliance defense.
Finally, we will discuss whether the district court properly
awarded attorney fees under the Lease.
I. 	AS A MATTER OF LAW, IHC DID NOT WAIVE ITS RIGHT TO TERMINATE
THE LEASE
¶15 	The district court granted summary judgment in favor of
IHC on its claim of forfeiture, rejecting D & K’s defense of
waiver. 	Summary judgment is appropriate only when there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. 7 	We review a district court’s
grant of summary judgment for correctness. 8 	Although the parties
to this appeal do not dispute the underlying material facts
concerning the payment and acceptance of rent, they do dispute
whether those facts amount to waiver as a matter of law. 	Because
waiver is intensely fact-dependent, district courts should
exercise care when granting summary judgment on this issue. 	But
a district court may grant summary judgment in favor of a party
on the issue of waiver if no reasonable fact finder could
conclude that the party intended to waive its rights.
A. Waiver Is the Intentional Relinquishment of a Known Right
¶16 	In Soter’s, Inc. v. Deseret Federal Savings & Loan
Association, we held that waiver is the intentional

9 857 P.2d 935, 940-42 (Utah 1993).
10 Id. at 940.
11 Id. (internal quotation marks omitted).
12 IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2003 UT 5,
¶ 7, 73 P.3d 320.
13 Id. (quoting Soter’s, Inc., 857 P.2d at 940 (citation
omitted)).
7 	No. 20061017
relinquishment of a known right. 9 	To establish waiver, a
defendant must show that the plaintiff had (1) an existing right,
(2) knowledge of its existence, and (3) an intent to relinquish
the right. 10 	“[W]aiver must be distinctly made, although it may
be express or implied.” 11 	In D & K I, we held that “[w]aiver is
an intensely fact dependent question.” 12 	We reiterated the
standard from Soter’s: “‘a fact finder need only determine
whether the totality of the circumstances warrants the inference
of relinquishment.’” 13
¶17 	The terms of the Lease make it clear that IHC had the
right to terminate the Lease, and IHC’s Notice of Default evinces
IHC’s awareness of that right. 	The parties’ only dispute in this
regard is a factual one: whether IHC’s actions in accepting the
April rent and sending correspondence about the Lease constituted
“distinctly made” acts showing IHC’s intent to waive its right to
terminate the Lease. 	Because the dispute is factual in nature,
D & K argues that the district court erred in granting summary
judgment to IHC in that it failed to draw factual inferences in
D & K’s favor.
B. 	Although It Is a Fact-Dependent Question, Waiver May
Appropriately Be Decided on a Motion for Summary Judgment
¶18 	A district court should exercise care in granting
summary judgment on fact-dependent questions. 	We have held that
[a] district court is precluded from granting
summary judgment “if the facts shown by the
evidence on a summary judgment motion support
more than one plausible but conflicting
inference on a pivotal issue in the case
. . . particularly if the issue turns on

14 Uintah Basin Med. Ctr. v. Hardy, 2008 UT 15, ¶ 19, 179
P.3d 786 (emphasis in original) (quoting 73 Am. Jur. 2d. Summary
Judgment § 46 (2001)).
15 See, e.g., Am. Sav. & Loan Ass’n v. Blomquist, 445 P.2d
1, 3 (Utah 1968); Olympus Hills Shopping Ctr. Ltd. v. Smith’s
Food & Drug Ctrs., Inc., 889 P.2d 445, 461 (Utah Ct. App. 1994).
16 Utah R. Civ. P. 56(c) (emphasis added).
17 D & K I, 2003 UT 5, ¶ 7 (quoting Soter’s, Inc., 857 P.2d
at 940 (citation omitted)).
No. 20061017 	8
credibility or if the inferences depend upon
subjective feelings or intent.” 14
¶19 	Although it should proceed with care in such cases, a
district court may nevertheless resolve appropriate cases on
summary judgment as a matter of law. 15 	Summary judgment requires
only that there is “no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” 16 	The word “genuine” indicates that a district court is
not required to draw every possible inference of fact, no matter
how remote or improbable, in favor of the nonmoving party.
Instead, it is required to draw all reasonable inferences in
favor of the nonmoving party. 	Our standard for waiver--that “‘a
fact finder need only determine whether the totality of the
circumstances warrants the inference of relinquishment’”--points
clearly to the summary judgment standard in this case: 17 	Summary
judgment is appropriate if, under the totality of the
circumstances, no reasonable fact finder could conclude that the
plaintiff intended to waive its rights.
C. 	As a Matter of Law, IHC Did Not Waive Its Right to Terminate
the Lease
¶20 	Applying this standard to the facts of this case, IHC
knew of its right to terminate the Lease and made clear its
intent to exercise its right to terminate the Lease. 	No
reasonable fact finder could have found otherwise. 	First, as
D & K noted in its brief, IHC’s intent at the time it purchased
the shopping center was to “get most of the tenants out of
there.” 	Second, after accepting rent for April 1998 but before
D & K tendered rent for March 1998, IHC sent the Notice of
Default to D & K instructing it to surrender possession of the
premises. 	IHC sent this letter while it had the right to
terminate the Lease because D & K still had not paid rent for the
month of March. 	Third, although IHC subsequently accepted a

9 	No. 20061017
check for the March 1998 rental payment and issued D & K a
receipt, it immediately returned the check uncashed. 	Finally,
the district court, which considered the totality of the
circumstances, took IHC’s ultimate development plan for the
shopping center and its surroundings into account. 	Those plans
included a state-of-the-art medical complex and related
facilities, which are incompatible with the continued operation
of D & K’s business. 	Thus, no reasonable fact finder could
conclude that IHC intentionally waived its right to remove D & K
from the property.
¶21 	D & K argues that certain facts could indicate IHC’s
intent to waive, but none is sufficient to raise a genuine issue
of material fact. 	First, D & K points out that IHC accepted rent
for the month of April 1998. 	Yet IHC exercised its right to
declare a forfeiture after it accepted the April rent but while
March rent remained unpaid. 	Thus, D & K was still in default at
the time IHC terminated the Lease by sending the Notice of
Default. 	Second, IHC sent correspondence to D & K addressed
“Dear Tenant,” directing it to continue complying with terms of
the Lease. 	This does not raise a genuine issue of material fact
because nothing in the correspondence addresses, much less
waives, IHC’s right or intent to terminate the Lease. 	Each of
the provisions IHC sought to enforce relates to protection of the
leased property or the right to receive rent in the event the
Lease would be upheld. 	It would be poor public policy to suggest
that tenants are exempt from complying with such lease provisions
during the dispute resolution period or that landlords who seek
to enforce such provisions risk waiving their right to terminate
for breaches of the lease.
¶22 	In light of these facts, we agree with the district
court, which held that
[u]nder the totality of the circumstances and
the undisputed facts presented to this Court,
IHC at no time distinctly and intentionally
relinquished its right to terminate the Lease
after D & K’s failure to pay rent in March
1998, but rather thereafter always pursued a
course of action consistent with an intent to
terminate the Lease and protect its rights
thereunder.
¶23 	As the district court held, no reasonable fact finder
could conclude that IHC intended to waive its right to terminate
the Lease and recover the property in light of the undisputed
facts. 	D & K’s waiver defense fails as a matter of law.

18 Thurston v. Box Elder County, 892 P.2d 1034, 1038 n.2
(Utah 1995).
19 Id. at 1037.
20 See id. 	We note that we have sometimes used the
terminology of res judicata, which we have defined to include the
doctrines of both issue and claim preclusion, and the terminology
of law of the case doctrine interchangeably. 	See State v.
(continued...)
No. 20061017 	10
Therefore, we affirm the district court’s grant of summary
judgment in favor of IHC.
II. 	THE DISTRICT COURT ACTED WITHIN ITS DISCRETION IN REFUSING
TO CONSIDER D & K’S UNTIMELY-RAISED SUBSTANTIAL COMPLIANCE
DEFENSE
¶24 	We will now discuss whether the district court acted
within its discretion under the law of the case doctrine when it
refused to consider D & K’s untimely-raised substantial
compliance defense. 	We will then discuss the three exceptions to
the law of the case doctrine, which, if applicable, would require
the district court to reconsider the forfeiture issue and address
the substantial compliance defense.
¶25 	We affirm the district court’s refusal to reopen the
issue of forfeiture for two reasons. 	First, because the district
court previously decided the issue of forfeiture, the law of the
case doctrine gave the district court discretion to refuse to
reopen the issue. 	Second, none of the exceptions apply to excuse
D & K’s failure to raise substantial compliance in a timely
manner.
A. 	The Law of the Case Doctrine Dictates that Decisions Made on
Issues During One Stage of a Case Are Binding on Successive
Stages of the Same Case
¶26 	The law of the case doctrine encompasses several
different principles related to the binding effect of a decision
on subsequent proceedings in the same case. 18 	Simply stated,
under the law of the case doctrine, “a decision made on an issue
during one stage of a case is binding in successive stages of the
same litigation.” 19 	Thus, the doctrine allows a court to decline
to revisit issues within the same case once the court has ruled
on them. 	In this way, the law of the case doctrine acts much
like the doctrine of res judicata--furthering the goals of
judicial economy and finality--but within a single case. 20

20 (...continued)
Garner, 2005 UT 6, ¶¶ 8-9, 106 P.3d 729. 	We have occasionally
used the language of res judicata to describe the binding effect
of an appellate court’s prior decision on a later proceeding in
the same case. 	See, e.g., id. ¶ 10 (holding that claim
preclusion barred this court from reconsidering on a second
appeal in the same case an issue that had been fully adjudicated
in the first appeal); Miller v. USAA Cas. Ins. Co., 2002 UT 6,
¶¶ 8 n.2, 56-63, 44 P.3d 663 (applying res judicata analysis to
claims in “one continuous case”). 	Res judicata is more
appropriately used to describe the binding effect of a decision
in a prior case on a second case where the requirements we have
delineated are met. 	Snyder v. Murray City Corp., 2003 UT 13,
¶ 34, 73 P.3d 325. 	Because the elements and effects of res
judicata and law of the case doctrines may differ, they should be
viewed as distinct doctrines. 	See id. ¶¶ 34-35.
21 See Utah R. Civ. P. 54(b) (providing that a district
court may revise any order or decision at any time before a final
judgment is made as to all claims and all parties).
22 Thurston, 892 P.2d at 1038 n.2.
11 	No. 20061017
1. 	The Law of the Case Doctrine May Give the District Court
Discretion to Decline to Revisit Issues Already Decided
¶27 	Depending on the procedural posture of a case at the
time the law of the case doctrine is invoked, the district court
may or may not have discretion to reconsider a prior decision it
has made. 	While a case remains pending before the district court
prior to any appeal, the parties are bound by the court’s prior
decision, but the court remains free to reconsider that
decision. 21 	It may do so sua sponte or at the suggestion of one
of the parties. 	And this discretionary power of reconsideration
includes the right of the district court to decline to reopen a
matter it has already decided. 22 	As long as the case has not
been appealed and remanded, reconsideration of an issue before a
final judgment is within the sound discretion of the district
court.
¶28 	A different branch of the law of the case doctrine--
often called the mandate rule--dictates that a prior decision of
a district court becomes mandatory after an appeal and remand.
The mandate rule, unlike the law of the case before a remand,
binds both the district court and the parties to honor the

23 Id. at 1037-38.
24 Gildea v. Guardian Title Co., 2001 UT 75, ¶ 9, 31 P.3d
543.
No. 20061017 	12
mandate of the appellate court. 23 	The mandate is also binding on
the appellate court should the case return on appeal after
remand. 24
2. 	The Law of the Case Doctrine Justified the District Court’s
Refusal to Reopen the Forfeiture Issue in this Case
¶29 	The district court, invoking the law of the case
doctrine, refused to reconsider the issue of forfeiture because
it had already decided that issue by granting summary judgment in
favor of IHC. 	We agree that the refusal was properly within the
district court’s discretion.
¶30 	In denying D & K’s motion, the district court
enumerated D & K’s numerous opportunities to argue substantial
compliance as a defense to forfeiture. 	The parties first
litigated the forfeiture issue prior to the appeal in D & K I.
At that time, IHC moved for a declaratory judgment on the
forfeiture issue, asserting that IHC was entitled to declaratory
judgment on the claim of forfeiture and that all of D & K’s
affirmative defenses failed as a matter of law. 	D & K,
therefore, had both the opportunity and the obligation to raise
any defenses in opposition to IHC’s claim of forfeiture or risk
being barred from presenting them in this or any future
proceeding by the law of the case doctrine.
¶31 	The district court noted that D & K was given
additional chances to argue substantial compliance as a defense
to IHC’s forfeiture claim. 	If, as it claims, D & K had properly
preserved the defense of substantial compliance by pleading
“unconscionability” in its Answer, D & K would have been free to
brief the issue to this court on appeal, but it failed to do so.
When this court reversed the district court’s grant of summary
judgment, IHC’s forfeiture claim was again before the district
court on IHC’s Motion for Summary Judgment. 	Again D & K failed
to raise substantial compliance on remand. 	The district court
granted summary judgment in favor of IHC on its forfeiture claim.
¶32 	While the district court may have had discretion to
reconsider the issue of forfeiture, the law of the case doctrine
justified its refusal to reopen the issue to consider D & K’s
newly developed substantial compliance argument. 	D & K argues
that we should reverse the ruling of the district court because

25 Gildea, 2001 UT 75, ¶ 9; see also Gillmor v. Wright, 850
P.2d 431, 439 (Utah 1993) (explaining the rationale behind the
flexible application of the law of the case doctrine and the
circumstances in which courts are justified in reexamining their
decisions).
13 	No. 20061017
it erroneously held that it had no discretion to reconsider.
Given discretion, D & K argues, the district court might have
reopened the issue. 	But D & K’s argument directly contradicts
the record. 	The district court concluded that it had no
discretion and, at the same time, indicated that it would decline
to reopen the issue if it had discretion. 	The district court,
having been briefed on D & K’s substantial compliance argument,
stated that it “d[id] not find that D & K ha[d] presented the
Court with facts that would support a substantial compliance
defense.” 	The district court thus held that it would decline to
hear the substantial compliance argument, or, in the alternative,
that D & K could not prevail on the merits as a matter of law
even if it considered the substantial compliance defense.
Therefore, it is unnecessary for this court to decide whether the
mandate rule bound the district court to follow its earlier
decision. 	The law of the case doctrine clearly granted the
district court discretion as to whether to reopen the previously
decided forfeiture issue, and it properly declined to do so.
¶33 	There are, however, exceptions to the law of the case
doctrine, which, if applicable, require a district court to
revisit an issue it has already decided. 	We now discuss these
exceptions.
3. 	The Law of the Case Doctrine Does Not Apply in Certain
Exceptional Circumstances
¶34 	There are three exceptional circumstances in which the
law of the case doctrine does not apply: “(1) when there has been
an intervening change of controlling authority; (2) when new
evidence has become available; or (3) when the court is convinced
that its prior decision was clearly erroneous and would work a
manifest injustice.” 25 	D & K argues that even if the law of the
case doctrine applies, the district court should have reopened
the issue of forfeiture under one of the three exceptional
circumstances.
4. 	None of the Exceptions Applied to Excuse D & K from Failing
to Argue Substantial Compliance
¶35 	None of the exceptions required the district court to
reopen the issue of forfeiture in this case. 	The first two

26 2005 UT 81, ¶ 61, 130 P.3d 325.
No. 20061017 	14
exceptions did not apply because D & K did not point to any new
facts or law which might have excused it from arguing substantial
compliance when the forfeiture claim was decided. 	First, D & K
has not pointed to any intervening change in law. 	We agree with
the district court that “[t]he defense [D & K] wants to now argue
is not new or novel, and indeed the main cases it relies upon in
its present motion were all issued before [D & K] opposed [IHC’s]
initial Motion for Partial Judgment on the Pleadings.” 	Nor has
D & K briefed this court on any intervening change of law.
Second, D & K has not pointed to any new evidence that it did not
have an opportunity to present when the forfeiture claim was
decided. 	In fact, at the 54(b) hearing on the forfeiture claim,
counsel for D & K told the court that there were no undecided
issues or facts left to be determined.
¶36 	Finally, D & K is unable to show that the prior
decision was clearly erroneous or would work a manifest
injustice. 	In Jensen v. Sawyers, we held,
manifest injustice [is] synonymous with plain
error and . . . the same analytical model
applies to each. 	The plain error test has
three parts: 	the demonstration of error; a
qualitative showing that the error was plain,
manifest, or obvious to the trial court; and
evidence that the error affected the
substantial rights of a party. 26
Under this rule, D & K is required to show that the error was or
should have been obvious to the district court at the time the
first decision was made. 	While D & K has pointed to voluminous
information in the record related to the costs it will incur if
forced to relocate, it has failed to show that the district court
should have ruled in its favor based on the law and evidence
before it at the time of the decision. 	D & K’s opposition to
summary judgment on the issue of forfeiture did not raise the
substantial compliance defense for the district court to
consider. 	If D & K’s own counsel, who had the responsibility to
research and argue defenses on behalf of D & K, failed to
recognize substantial compliance as a plausible defense, it is
difficult to say that the error should have been “plain,
manifest, or obvious” to the district court. 	Further, it is
unlikely that the substantial compliance defense would have
persuaded the district court even if it had been raised when the
forfeiture claim was decided. 	The district court indicated as
much when it denied D & K’s Motion for Reconsideration:

27 Paul DeGroot Bldg. Servs., L.L.C. v. Gallacher, 2005 UT
20, ¶ 18, 112 P.3d 490.
15 	No. 20061017
[A]s the parties have now briefed the matter
of substantial compliance in the papers
before the Court on [D & K’s] motion for
reconsideration, and having considered all
the arguments, facts, and cases cited by the
parties in those papers, the Court does not
find that [D & K] has presented the Court
with facts that would support a substantial
compliance defense.
We agree and hold that none of the exceptions to the law of the
case doctrine apply.
¶37 	We affirm the district court’s decision and conclude
that it did not abuse its discretion in refusing to reopen the
issue of forfeiture. 	Having affirmed that D & K has forfeited
the Lease and that neither waiver nor substantial compliance
provide a defense, we now turn to the issue of whether IHC may
recover attorney fees according to the Lease.
III. 	THE DISTRICT COURT ERRONEOUSLY AWARDED ATTORNEY FEES
¶38 	Whether a party is entitled to an award of attorney
fees is a legal conclusion--in this case a matter of contract
interpretation--which we review for correctness. 27 	In our
review, we will first discuss the language of the two provisions
in the Lease contract that provide for an award of attorney fees.
One provision allows recovery of attorney fees only in actions
instituted during the term of the Lease; the other allows
recovery of attorney fees without regard to whether the action is
instituted during the term of the Lease. 	IHC cannot claim
attorney fees under the second provision because it voluntarily
dismissed its claim under that provision. 	Therefore, the issue
becomes whether this action was instituted “during the term of
this Lease” as intended by the contracting parties. 	Because we
conclude that the action was not instituted during the term of
the Lease, we reverse the district court’s award of attorney fees
in this case.

28 Cottonwood Mall Co. v. Sine, 830 P.2d 266, 269 (Utah
1992).
29 Foote v. Clark, 962 P.2d 52, 54 (Utah 1998).
30 767 P.2d 499, 503 (Utah 1988).
31 Id.
32 Id.
No. 20061017 	16
A. 	The Lease Contains One Attorney Fees Provision for Actions
Instituted During the Term of the Lease and One Attorney Fees
Provision for Actions Without Regard to When They Were Instituted
¶39 	“Generally, a party is entitled to attorney fees only
as provided by contract or statute.” 28 	IHC bases its claim on
the Lease contract. 	“Fees provided for by contract, moreover,
are allowed only in strict accordance with the terms of the
contract.” 29 	In general, provisions for attorney fees continue
to be binding on the parties even though the term of the lease
has ended. 	In Cottonwood Mall Co. v. Sine, we held that a
“holdover tenant continues to be bound by the covenants which
were binding upon him during the fixed term.” 30 	Although IHC
terminated the Lease in this case when it sent the Notice of
Default, D & K continues to occupy the leased premises subject to
a final adjudication in this case and therefore continues to be
bound by the covenants in the Lease.
¶40 	In Cottonwood Mall Co., the lease provided that
attorney fees could be awarded “during the terms of this lease
. . . or to secure possession of the leased premises in the event
this lease is terminated as herein provided . . . or at the
expiration of the term.” 31 	The lease in that case had ended
because the term had expired. 	We held that because the provision
for attorney fees “specifically cover[ed] actions by the lessor
to secure possession of the premises at the expiration of the
lessee’s term . . . includ[ing] the holdover period,” the
landlord could recover attorney fees. 32
¶41 	Similarly, the Lease in this case includes a provision,
section 17.2(c), that permits either party to recover attorney
fees without regard to whether the lawsuit was instituted during
the term of the Lease. 	Section 17.2(c) lists attorney fees among
the damages recoverable in a lawsuit for breach of contract.
Such a lawsuit may often be instituted after the term of the
Lease has, possibly as a result of the breach, ended. 	In
contrast, section 23 of the Lease contemplates an award of

17 	No. 20061017
attorney fees for actions instituted during the term of the
Lease. 	It provides for attorney fees “in the event that at any
time during the term of this Lease either the Landlord or the
Tenant institutes any action or proceeding against the other
relating to the provisions of this Lease or any default
hereunder.” 	(Emphasis added.) 	While this provision may be
invoked for “any action or proceeding” related to the Lease, it
limits recovery of attorney fees to actions instituted during the
term of the Lease.
B. 	IHC Voluntarily Dismissed Its Claim to Attorney Fees Under
Section 17.2(c)
¶42 	IHC has waived any claim to attorney fees under section
17.2(c). 	Prior to the litigation, IHC’s Notice of Default
referenced section 17.2(c). 	But, after prevailing on the merits
in the litigation, IHC filed a Combined Motion to Dismiss
Remaining Claims of Damages and to Award Attorney Fees and Costs,
in which it relied exclusively on section 23 for its attorney
fees claim. 	The district court subsequently ruled that
In the unlikely event that [IHC] is claiming
fees under section 17.2 of the Lease, that
section is unavailing. 	Section 17.2 provides
for attorney’s fees as an element of
‘damages,’ and any damage claim arising from
the eviction proceeding has been expressly
waived, and my Order of January 23, 2006,
makes that waiver law of the case.
IHC did not appeal this ruling. 	Therefore, IHC is limited to
recovering attorney fees for actions instituted during the term
of the lease.
C. 	The Action Was Not Instituted During the Term of the Lease in
this Case
¶43 	Whether IHC is entitled to attorney fees under section
23 turns on whether this action was instituted during the term of
the Lease. 	D & K argues that, under IHC’s theory of the case,
IHC terminated the Lease when it sent the Notice of Default more
than one year before it filed its Complaint. 	The district court,
on the other hand, held that “[u]ntil this court . . . determined
that [IHC’s] ejectment action at common law was successful, the
Lease was not terminated.” 	We agree with D & K that the “term of
this Lease” ended when IHC sent the Notice of Default, and
therefore this action was not filed during the term of the Lease.

33 Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 9, 48 P.3d 941.
34 Willard Pease Oil & Gas Co. v. Pioneer Oil & Gas Co., 899
P.2d 766, 770 (Utah 1995).
No. 20061017 	18
Accordingly, we reverse the district court’s award of attorney
fees to IHC.
¶44 	We interpret the contractual term “during the term of
this Lease” in accordance with our well-developed rules of
contract interpretation. 	“The underlying purpose in construing
or interpreting contractual provisions is to determine the
intentions of the parties.” 33 	Whenever possible, “the intent of
the parties is to be determined from the writing itself, with
each provision being considered in relation to all others.” 34
¶45 	In this case, the two Lease provisions related to
attorney fees must be read in relation to each other. 	Section 23
provides for attorney fees only for actions instituted during the
term of the Lease, while section 17.2(c) creates an additional
entitlement to attorney fees without regard to whether the action
was instituted during the term of the Lease. 	Section 17.2(c),
entitled “Termination of this Lease by written notice to Tenant,”
grants attorney fees in the event that the landlord terminates
the Lease by written notice. 	If the parties intended that such a
notice of termination would not end the term of the Lease, the
extra provision for attorney fees in section 17.2(c) would have
been unnecessary. 	We do not believe the parties intended to
include such a specific entitlement as mere surplusage. 	Rather,
the inclusion of section 17.2(c), which specifically contemplates
termination of the Lease by written notice, evinces the parties’
intent to provide for attorney fees incurred in recovering the
premises where such fees could not have been awarded under
section 23 because the term of the Lease had ended following a
breach of contract. 	Therefore, the term of the Lease ended in
this case when the landlord, IHC, sent a written notice of
termination.
¶46 	IHC’s written Notice of Default itself purported to
terminate the Lease. 	The Notice of Default specifically invoked
the remedies in section 17.2(c), including its right to recover
attorney fees for a lawsuit instituted after the term of the
Lease had ended. 	The district court ruled that IHC expressly
waived this right, and IHC did not appeal this ruling.
Therefore, because IHC waived its right to recover in actions
instituted after the term of the Lease, and this action was
instituted after the term of the Lease, IHC may not recover
attorney fees in this case.

19 	No. 20061017
¶47 	We therefore reverse the order of the district court
awarding attorney fees to IHC. 	Because we conclude that IHC is
not entitled to attorney fees under the Lease, it is unnecessary
to decide whether the amount of the attorney fee award was
reasonable.
CONCLUSION
¶48 	We conclude that the district court appropriately
granted summary judgment in favor of IHC on the issue of waiver
because, under the totality of the circumstances, no reasonable
fact finder could conclude that IHC intended to waive its right
to terminate the Lease. 	We also affirm the district court’s
refusal to reopen the forfeiture issue to consider D & K’s
untimely-raised defense of substantial compliance. 	The law of
the case doctrine granted the district court discretion to refuse
to reopen the issue of forfeiture, and D & K did not demonstrate
that any exceptional circumstance excused its failure to timely
raise substantial compliance. 	But we reverse the district
court’s award of attorney fees because IHC waived its right to
recover attorney fees under section 17.2(c) and cannot recover
under section 23 as IHC terminated the Lease by sending the
Notice of Default.
---
¶49 	Justice Wilkins, Justice Parrish, Justice Nehring, and
Judge Lynn W. Davis concur in Associate Chief Justice Durrant’s
opinion.
¶50 	Having disqualified herself, Chief Justice Durham does
not participate herein; District Judge Lynn W. Davis sat.