Grove Business Park v. Sealsource International

2019 UT App 76

THE UTAH COURT OF APPEALS

GROVE BUSINESS PARK LC,
Appellee,
v.
SEALSOURCE INTERNATIONAL LLC,
Appellant.

Opinion
No. 20170015-CA
Filed May 9, 2019

Fourth District Court, Provo Department
The Honorable M. James Brady
No. 130401429

Mark A. Nickel, Joseph Z. Alisa, and Stacy J.
McNeill, Attorneys for Appellant
Ryan B. Hancey, Attorney for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

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

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

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

BACKGROUND

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

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

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Tenant and its customers; (5) pervasive insect problems;
(6) unmaintained parking and common areas; and (7) noise
emanating from the dance studio. 1

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

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

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

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granted Landlord’s motion, stating that it would not admit
evidence regarding the Four Alleged Defects “when it’s contrary
to the summary judgment ruling.”

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

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

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

ISSUES AND STANDARDS OF REVIEW

¶11 Tenant advances three main challenges on appeal. First,
Tenant contends that the district court erred in granting partial
summary judgment on its claims as they related to the Four

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Alleged Defects. A motion for summary judgment shall be
granted “if the moving party shows that there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.” Utah R. Civ. P. 56(a). “In
reviewing a trial court’s grant of summary judgment, we
consider only whether it correctly applied the law and correctly
concluded that no disputed issues of material fact existed.” Pigs
Gun Club, Inc. v. Sanpete County, 2002 UT 17, ¶ 7, 42 P.3d 379
(cleaned up). “In so doing, we view all facts and reasonable
inferences drawn therefrom in a light most favorable to the
nonmoving party.” Id. Similarly, questions of contract
interpretation that “are confined to the language of the contract
itself are questions of law, which we review for correctness.”
iDrive Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 30, 424
P.3d 970 (cleaned up).

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

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

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ANALYSIS

I. The Partial Summary Judgment Ruling

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

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

¶16 Before reaching the specific arguments of the parties, we
note that in challenging the district court’s grant of partial
summary judgment, Tenant does not engage with the nature of,
or the particular protections afforded by, its affirmative claims
for breach of the covenant of quiet enjoyment and breach of the
warranty of suitability. But because Tenant’s arguments focus on
whether the Lease, or modifications of the Lease, expressly
required Landlord to repair the Four Alleged Defects, 2 we
likewise focus on the Lease to resolve its challenge to the district
court’s summary judgment decision.

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

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

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

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

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

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

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

¶20 Tenant argues that Landlord “was obligated to make the
subject repairs” pursuant to the Lease. Invoking Paragraph 9 of
the Lease, Tenant argues that the issues it complained of “were
latent defects (either because the defect existed prior to the Lease
or the defect was caused by ‘acts of Landlord or Landlord’s
representatives’), or [Landlord] otherwise promised to remediate
the issue.” According to Tenant, whether any of the Four
Alleged Defects “was ‘latent’ or a ‘defect’ should have been left
to the jury.” It claims that “[t]he parties understood ‘latent
defect’ to include issues that arose within the first year of the
Lease.” Further, “[Landlord’s] [various] representations that it

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was addressing the [Four Alleged Defects] is evidence proving
the defects fall under Paragraph 9 of the Lease, meaning the jury
should have resolved that factual dispute—not the trial court.”

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

B. The Four Alleged Defects

1. The HVAC System

¶22 Tenant argues that the district court erred in dismissing
the portion of its claims based on its contention that Landlord
failed to fix heating and cooling problems in the HVAC system,
maintaining its position that the HVAC was part of Landlord’s
repair obligations under Paragraph 9 of the Lease. Tenant also
suggests that “material facts were in dispute” including
“whether the HVAC issues were caused by [Landlord] and/or
[Tenant], and whether based on the course and scope of
[Landlord’s] dealings it was obligated to repair the HVAC.” In
other words, Tenant suggests that the HVAC problems might
have qualified as “damage . . . result[ing] from acts of Landlord”
that Landlord had an obligation to repair under Paragraph 9 or

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that Landlord modified the Lease by assuming the obligation to
repair the HVAC. In granting summary judgment on this claim,
the district court adopted Landlord’s reasoning, namely, that
Tenant’s claim failed as a matter of law because the Lease
obligated Tenant, not Landlord, to make the HVAC repairs.

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

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

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Tenant did not give the district court an opportunity to rule on
the issue and did not preserve it for our review.

¶25 Tenant also suggests that disputed facts exist about
whether, “based on the course and scope of [Landlord’s
dealings],” Landlord assumed an obligation to repair the HVAC.
The Utah Rules of Appellate Procedure require an appellant’s
brief to “explain, with reasoned analysis supported by citations
to legal authority and the record, why the party should prevail
on appeal.” Utah R. App. P. 24(a)(8). This requirement means
that a “party must cite the legal authority on which its argument
is based and then provide reasoned analysis of how that
authority should apply in the particular case, including citations
to the record where appropriate.” Bank of Am. v. Adamson, 2017
UT 2, ¶ 13, 391 P.3d 196. “An appellant that fails to devote
adequate attention to an issue is almost certainly going to fail to
meet its burden of persuasion.” Id. Here, Tenant’s brief does not
contain any citations to legal authority or reasoned analysis in
support of its assertion that Landlord assumed obligations
related to the HVAC. Tenant therefore has not carried its burden
of persuasion regarding the HVAC problems. 4

2. The Front Door

¶26 Tenant contends that the district court erred in dismissing
the portion of its claims relating to the broken front door. Tenant
argues that Landlord was obligated to make the repair because
Landlord allegedly promised to fix the front door and because
Landlord attempted to repair it and “made the problem worse
(thereby owning the problem).” In granting summary judgment

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

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regarding the front door, the district court accepted Landlord’s
reasoning that, per the Lease, Landlord was not required to
repair and maintain the front door.

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

3. The Loading Dock

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

¶29 Tenant contends that the loading dock height falls within
the definition of a latent defect in the exterior walls or the

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

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

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

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short, Tenant has not shown error in the district court’s grant of
summary judgment on its loading-dock claim.

4. Parking

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

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

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

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

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C. Waiver, Estoppel, and Unclean Hands

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

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

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

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hands to a level of consciousness before the district court
sufficient to preserve them.

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

II. The Evidence Excluded at Trial

¶40 Tenant next contends that the district court abused its
discretion in excluding at trial evidence that Landlord promised
to remedy the Four Alleged Defects. Even if Landlord was not
obligated to redress the Four Alleged Defects under the terms of
the Lease, Tenant asserts that the jury nevertheless should have
been allowed to consider evidence that Landlord assured Tenant
that Landlord would take care of the problems surrounding the
Four Alleged Defects. As Tenant explains, “[Landlord’s]
promises concerning those issues [with the premises] explained
why [Tenant] waited as long as it did to vacate,” and the jury
was precluded from considering whether “it was reasonable for
[Tenant] to rely on [Landlord’s] assurances.” Tenant thus argues
that the excluded evidence had bearing on its assertion that
Landlord constructively evicted it from the premises. 5

5. Tenant does not expressly identify the claims or defenses it
contends this evidence is relevant to, but argues generally that it
is relevant to the issue of constructive eviction and particularly
whether its delay in vacating was reasonable. The jury was
instructed that the issue of constructive eviction was relevant to
Landlord’s claim for breach of the Lease and Tenant’s claim for
breach of the covenant of quiet enjoyment. Based on those
(continued…)

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

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

(…continued)
instructions, we understand Tenant to be arguing that the
excluded evidence was relevant to Landlord’s breach of contract
claim and Tenant’s breach of quiet enjoyment claim.

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exactly what evidence was excluded and whether it was
significant enough in context to change the result.

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

¶44 Importantly, our consideration of harmfulness in this case
is also hindered by the fact that Tenant has not furnished an
adequate trial record. In particular, Tenant has provided the
transcripts of only two days of the five-day trial. The transcripts
include the testimony of two witnesses, but the testimony of
eight other witnesses is not available. And although the parties’
opening statements are included in the record, their closing
arguments are not. These omissions are particularly significant
in this case because the evidentiary ruling did not exclude all
evidence of Landlord’s assurances to Tenant. But without
knowing the full extent of what the jury heard and what
specifically was excluded, we are unable to gauge how the
excluded evidence altered the evidentiary picture of the relevant
issues without engaging in pure speculation. Given this lack of

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an adequate record on appeal, we are thus prevented from
“undertaking a meaningful harmless error analysis,” and we
cannot grant Tenant appellate relief on this issue. See Black v.
Hennig, 2012 UT App 259, ¶ 16, 286 P.3d 1256. For these reasons,
we conclude that Tenant has not established reversible error.

III. Attorney Fees

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

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

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

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

1. Prevailing Party

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

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¶49 As our supreme court observed in R.T. Nielson,
“determining the prevailing party for purposes of awarding fees
can oftentimes be quite simple.” Id. ¶ 23 (cleaned up). “Where a
plaintiff sues for money damages, and plaintiff wins, plaintiff is
the prevailing party; if defendant successfully defends and
avoids adverse judgment, defendant has prevailed.” Id. The
court cautioned, however, that “[t]his simple analysis cannot
always be employed.” Id. Whether a party is the prevailing party
“depends, to a large measure, on the context of each case,” and
district courts are advised to consider relevant factors while not
abandoning their common sense. Id. ¶ 25. Among the factors
relevant to the determination are: (1) the language of the
attorney fee provision, (2) the number of claims brought by the
parties, (3) the importance of each claim relative to the others
and their significance considering the lawsuit as a whole, and
(4) the amounts awarded on the various claims. Utah Transit
Auth. v. Greyhound Lines, Inc., 2015 UT 53, ¶ 58, 355 P.3d 947.

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

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

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identifying Landlord as the prevailing party.6 See id. (“[W]e
employ an abuse of discretion standard when reviewing a
district court’s prevailing party determination.”).

2. Reasonableness

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

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

the difficulty of the litigation, the efficiency of the
attorneys in presenting the case, the reasonableness

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

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

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

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

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claims under the Lease’s attorney fees provision, the district
court did not err in determining that there was no need to
allocate.

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

¶56 Similarly, Tenant has not demonstrated that the district
court erred in not rejecting certain of Landlord’s time entries as
unreasonable solely on the basis that they were block billed. 7 The
district court concluded that “block billing does not prevent a
prevailing party from recovering attorney fees under Utah law,”
citing two Utah cases where fees were allowed despite the use of
block billing. See Shurtleff v. United Effort Plan Trust, 2012 UT 47,
¶¶ 10, 41, 289 P.3d 408; Brown, 1999 UT App 109, ¶¶ 10, 15, 51.
Tenant does not address those cases but instead relies on an
unpublished case from the Tenth Circuit Court of Appeals in
which the court identified some difficulties associated with block

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

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billing. See BP Pipelines (N. Am.) Inc. v. C.D. Brown Constr., Inc.,
473 F. App’x 818, 833–36 (10th Cir. 2012). But even in that case,
the Tenth Circuit explained that it has “never mandated a
reduction or a denial of a fee request based on block billing.” Id.
at 835. Instead, “the decision of whether block billing indicates
an unreasonable claim should remain with the district court who
should be allowed to exercise its discretion accordingly.” Id.
(cleaned up).

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

B. Landlord’s Request for Attorney Fees on Appeal

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

CONCLUSION

¶59 We conclude that Tenant has not established error in the
district court’s grant of partial summary judgment to Landlord
on Tenant’s claims as they related to the Four Alleged Defects.
Tenant also has not shown reversible error in the district court’s
exclusion of evidence that Landlord allegedly promised to
address the Four Alleged Defects. We also conclude that Tenant
failed to show that the district court exceeded its discretion in

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awarding attorney fees to Landlord. Accordingly, we affirm the
district court’s decisions, and we remand for the limited purpose
of calculating Landlord’s reasonable attorney fees incurred on
appeal.

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