UDAK Properties v. Spanish Fork

2020 UT App 164
THE UTAH C OURT OF APPEALS
UDAK P ROPERTIES LLC,
Appellee,
v.
SPANISH FORK , UT REALTY LLC,
Appellant.
Opinion
No. 20190821-CA
Filed December 10, 2020
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 160400059
Kenneth A. Okazaki, Bruce Wycoff, and Taryn N.
Evans, Attorneys for Appellant
Greggory J. Savage, Gregory S. Roberts, and Carol A.
Funk, Attorneys for Appellee
J UDGE D IANA HAGEN authored this Opinion, in which
J UDGES G REGORY K. ORME and D AVID N. MORTENSEN concurred.
HAGEN, Judge:
¶1 	Spanish Fork, UT Realty LLC (SFUR) appeals from the
district court’s grant of declaratory relief (Original Judgment) to
UDAK Properties LLC declaring that UDAK is a “Responsible
Owner” under a restrictive covenant binding the parties. SFUR
argues that the provision is unambiguous and provides that
UDAK is not a Responsible Owner. Alternatively, SFUR argues
that even if the provision is ambiguous, we should reverse
because the district court made two evidentiary errors. SFUR
also 	challenges 	the 	attorney 	fees 	awarded 	to 	UDAK 	(First
Supplemental Judgment). Finally, SFUR claims that the district
court incorrectly concluded that its tender of judgment was
legally insufficient and that UDAK was entitled to an award of

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additional 	attorney 	fees 	(Second 	Supplemental 	Judgment).
Because SFUR filed a timely notice of appeal from the Second
Supplemental 	Judgment 	only, 	we 	conclude 	that 	we 	lack
jurisdiction to review the district court’s rulings that became
final 	and 	appealable 	upon 	entry 	of 	the 	First 	Supplemental
Judgment. We further conclude that SFUR’s tender was invalid
and that the district court properly awarded attorney fees in the
Second Supplemental Judgment in connection with the invalid
tender. Accordingly, we affirm.
BACKGROUND
¶2 	This appeal stems from a disagreement as to the meaning
of 	the 	term 	“Responsible 	Owner” 	in 	a 	restrictive 	covenant
(Declaration) that binds the owners of parcels in a shopping
center 	in 	Spanish 	Fork, 	Utah. 	The 	consent 	of 	Responsible
Owners is required before constructing or modifying buildings
in the shopping center.
¶3 	SFUR is the owner of the shopping center parcel referred
to as the “Kmart Parcel” in the Declaration. After a dispute arose
as to whether UDAK was a Responsible Owner, UDAK filed a
declaratory relief action, naming the other property owners in
the 	shopping 	center 	as 	co-defendants. 	UDAK 	sought 	a
declaration that “it is a Responsible Owner, and that it possesses
all 	the 	rights 	provided 	to 	Responsible 	Owners 	in 	the
Declaration.”
¶4 	SFUR, along with its two co-defendants, counterclaimed,
seeking a declaration that UDAK was not a Responsible Owner.1
1. 	Canyon 	Creek 	Commercial 	Center 	LLC 	filed 	a 	separate
appeal, which we also decide today. See UDAK Properties LLC v.
Canyon Creek Com. Center LLC, 2020 UT App 163. The other
defendant/counterclaimant did not appeal.

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The court found that the Responsible Owner provision of the
Declaration was “facially ambiguous as a matter of law,” and set
the matter for a bench trial. After conclusion of the trial, the
court ruled that UDAK was a Responsible Owner and entered
the Original Judgment, indicating that UDAK was entitled to its
reasonable attorney fees in an amount to be determined. SFUR
did not file a notice of appeal after the entry of the Original
Judgment. On November 1, 2018, the court awarded UDAK
$251,498.65 in attorney fees in the First Supplemental Judgment.
SFUR did not file a timely notice of appeal.
¶5 	In an apparent effort to satisfy the judgment while still
preserving its right of appeal, SFUR filed a document titled
“Tender of Judgment Amount Plus Accrued Interest” to which it
attached a photocopy of a check made out to UDAK for the total
judgment. The actual check was never sent to UDAK. Shortly
thereafter, SFUR filed a document titled “Motion for Order
Abating Interest and Declaring Money Judgment Satisfied.” The
court denied the motion, concluding that SFUR had not made a
valid tender and granting UDAK additional attorney fees. The
Second Supplemental Judgment, awarding UDAK an additional
$27,979 in attorney fees, was entered on September 5, 2019.
¶6 	On October 2, 2019, less than thirty days after the Second
Supplemental Judgment, SFUR filed its notice of appeal.
ANALYSIS
¶7 	SFUR urges us to reach a number of issues on appeal
related 	to 	the 	Original 	Judgment 	ruling 	that 	UDAK 	is 	a
Responsible Owner, the First Supplemental Judgment awarding
attorney fees, and the Second Supplemental Judgment rejecting
SFUR’s invalid tender and awarding additional attorney fees. As
a threshold matter, we first consider UDAK’s argument that,
because SFUR did not file its notice of appeal until October 2,
2019, this court lacks jurisdiction to hear all but SFUR’s last

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claim. Specifically, UDAK claims that the First Supplemental
Judgment, “relating to enforcement of the underlying ruling,
constituted a ‘separate judgment[] . . . individually subject to the
rules of appellate procedure concerning appeals.’” (Quoting Ross
v. Barnett, 2018 UT App 179, ¶ 20 n.6, 436 P.3d 306.)
¶8 	“Whether appellate jurisdiction exists is a question of law
which we decide in the first instance.” State v. Alvarez, 2020 UT
App 126, ¶ 14, 473 P.3d 655 (cleaned up). “We have jurisdiction
to review only those rulings from which a timely notice of
appeal was filed.” Ross, 2018 UT App 179, ¶ 18. Rule 4(a) of the
Utah Rules of Appellate Procedure directs a party to file an
appeal “within 30 days after the date of entry of the judgment or
order appealed from.” Utah R. App. P. 4(a). “It is axiomatic in
this jurisdiction that failure to timely perfect an appeal is a
jurisdictional failure requiring dismissal of the appeal.” A.S. v.
R.S., 2017 UT 77, ¶ 35 n.12, 416 P.3d 465 (cleaned up).
¶9 	Here, the notice of appeal was filed on October 2, 2019.
Only 	the 	Second 	Supplemental 	Judgment 	falls 	within 	the
preceding 	thirty-day 	period. 	In 	the 	Second 	Supplemental
Judgment, 	the 	district 	court, having 	concluded 	that 	SFUR’s
tender was invalid, awarded attorney fees to UDAK for work
done in connection with SFUR’s purported tender and related
motions. Accordingly, we have jurisdiction over SFUR’s claim
that the “tender was legally sufficient and provided no basis for
an attorney-fee award.”
¶10 	All the remaining issues on appeal relate to rulings made
prior 	to 	the 	entry 	of 	the 	First 	Supplemental 	Judgment.
Nevertheless, 	quoting 	North 	Fork 	Special 	Service 	District 	v.
Bennion, 2013 UT App 1, 297 P.3d 624, SFUR invokes the merger
of judgment doctrine and argues that “[e]ach ruling in this case
before the district court’s [Second Supplemental Judgment] . . .
was ‘one link in the chain of rulings leading to’ that final
Amended Judgment.” See id. ¶ 18. SFUR reasons that once the

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Second Supplemental Judgment was entered, all other orders
merged into one final, appealable judgment.
¶11 	SFUR’s 	arguments 	misapply 	the 	merger 	of 	judgment
doctrine. 	The 	district 	court 	resolved 	all 	outstanding 	issues
between the parties when it awarded attorney fees incurred in
connection with the declaratory action and entered the First
Supplemental 	Judgment. 	Accordingly, 	“all 	preceding
interlocutory rulings that were steps toward final judgment,”
including prior evidentiary rulings and the declaration that
UDAK 	is 	a 	Responsible 	Owner, 	“merge[d] 	into 	the 	final
judgment and [became] appealable at that time.” See Butler v.
Corporation of the President of the Church of Jesus Christ of Latter-day
Saints, 2014 UT 41, ¶ 24 n.6, 337 P.3d 280 (cleaned up). Although
the filing of certain post-judgment motions can extend the time
for filing a notice of appeal, SFUR’s purported tender, along
with 	its 	“Motion 	for 	Order 	Abating 	Interest 	and 	Declaring
Money Judgment Satisfied,” does not fit within any of the post-
judgment motions listed in rule 4(b) 	of the Utah 	Rules of
Appellate Procedure. Therefore, the time to appeal the district
court’s 	ruling 	that 	UDAK 	is 	a 	Responsible 	Owner, 	any
subsidiary evidentiary rulings, and the award of attorney fees
incurred by UDAK in the underlying action began to run when
the First Supplemental Judgment was entered on November 1,
2018. Because SFUR’s notice of appeal was not filed within thirty
days of the First Supplemental Judgment, we lack jurisdiction to
consider SFUR’s challenges to any of the rulings that merged
into that final judgment.
¶12 	On the other hand, SFUR filed a timely notice of appeal
from the Second Supplemental Judgment, which was a separate
and 	distinct 	order. 	“The 	initial 	action 	resulting 	in 	a 	final
judgment and the subsequent action seeking enforcement of that
judgment are separate proceedings, each resulting in separate
judgments that are then individually subject to the rules of
appellate procedure concerning appeals.” Cheves v. Williams,

UDAK Properties v. Spanish Fork
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1999 UT 86, ¶ 52, 993 P.2d 191 (cleaned up). The district court’s
post-judgment 	ruling 	on 	whether 	SFUR’s 	purported 	tender
satisfied the judgment was independently appealable so long as
it was final. See Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982)
(explaining that the “final judgment rule does not preclude
review 	of 	postjudgment 	orders,” 	which 	“are 	independently
subject to the test of finality, according to their own substance
and effect”). Because the Second Supplemental Judgment is
final—and 	UDAK 	does 	not 	suggest 	otherwise—we 	have
jurisdiction to consider SFUR’s challenge to that post-judgment
ruling.
¶13 	We reject SFUR’s challenge to the Second Supplemental
Judgment on the merits. For the same reasons set forth in our
opinion 	resolving 	the 	companion 	appeal 	by 	co-defendant
Canyon Creek Commercial Center LLC, UDAK Properties LLC v.
Canyon Creek Com. Center LLC, 2020 UT App 163, the district
court correctly determined that SFUR’s purported tender was
invalid 	and 	properly 	awarded 	UDAK 	the 	attorney 	fees 	it
incurred as a result of those post-judgment proceedings. See id.
¶¶ 31–36.
¶14 	We 	further 	grant 	UDAK’s 	request 	for 	its 	reasonable
attorney fees in connection with this appeal. “A party entitled by
contract or statute to attorney fees below and that prevails on
appeal 	is 	entitled 	to 	fees 	reasonably 	incurred 	on 	appeal.”
Federated Cap. Corp. v. Abraham, 2018 UT App 117, ¶ 15, 428 P.3d
21 (cleaned up). Because the district court awarded UDAK
attorney 	fees 	below 	pursuant 	to 	the 	Declaration, 	UDAK 	is
entitled to fees as the prevailing party on appeal.
CONCLUSION
¶15 	We conclude that we lack jurisdiction to hear most of
SFUR’s claims on appeal. With respect to the one issue over
which we have jurisdiction, we conclude that the district court

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correctly determined that the tender was invalid and properly
awarded 	attorney 	fees 	under 	the 	Declaration. 	We 	therefore
affirm and remand to the district court to calculate the amount of
attorney fees UDAK reasonably incurred on appeal.