Fritsche v. Deer Valley Ridge

2022 UT App 11
THE UTAH COURT OF APPEALS
DEBORAH J. F RITSCHE AND R. WINSLOW WHITE,
Appellants and Cross-appellees,
v.
DEER V ALLEY R IDGE AT S ILVER LAKE A SSOCIATION OF U NIT
O WNERS AND A LPINE S KI PROPERTIES I NC .,
Appellees and Cross-appellants.
Opinion
No. 20200411-CA
Filed January 21, 2022
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
The Honorable Kent Holmberg
No. 180500567
Troy L. Booher, Beth E. Kennedy, and Taylor Webb,
Attorneys for Appellants and Cross-appellees
John H. Romney, Daniel E. Young, and Rick L.
Frimmer, Attorneys for Appellees and Cross-
appellants Deer Valley Ridge at Silver Lake
Association of Unit Owners
JUDGE R YAN D. T ENNEY authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
TENNEY, Judge:
¶1 	This case started when a misplaced sprinkler allegedly
caused a few thousand dollars in damages to a Park City
condominium. The condominium was owned by a trust, and the
trust 	later 	sued 	its 	condominium 	association 	for 	damages
stemming from the incident. In its suit, the trust not only asked
for the costs of the repairs, but also for “punitive damages and
attorney fees and costs” that “may exceed $300,000.”

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¶2 	The parties initially settled out of court. But when the
condominium association asked the district court to enforce the
settlement agreement, the trust argued that the agreement was
unenforceable. The court rejected that argument and ruled that
the 	agreement 	was 	enforceable. 	When 	the 	condominium
association then asked the court to award it attorney fees, the
court denied that request too.
¶3 	Both sides now appeal. For the reasons set forth below,
we affirm both rulings.
BACKGROUND
The Lawsuit
¶4 	Deborah J. Fritsche and R. Winslow White (the Trustees)
are the trustees of the Deb & Win Trust (the Trust). The Trust
owns a condominium unit in the Deer Valley Ridge at Silver
Lake condominium project. As a unit owner, the Trust is a
member 	of 	the 	condominium 	project’s 	Association 	of 	Unit
Owners (the Association). For many years, one of the Trustees
(either Fritsche or White) served, by election of the unit owners,
on the Association’s management committee. The management
committee was a subset of unit owners authorized “to make and
to enforce all of the reasonable rules and regulations covering
the operation and maintenance of the [condominium project].”
¶5 	The Association hired a property management company,
Alpine Ski Properties (Alpine), to maintain common areas. In
2019, the Trust sued the Association and Alpine, alleging that the
Association and Alpine were responsible for damage to the
Trust’s condominium stemming from a misplaced sprinkler. The
Trust claimed $4,100 in actual damages, and it also claimed that
it was entitled to punitive damages, attorney fees, and costs that
“may exceed $300,000.”

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¶6 	In response, the Association filed a motion to dismiss,
which Alpine joined. The Association also filed a motion for rule
11 sanctions. See Utah R. Civ. P. 11(c). In the rule 11 motion, the
Association argued that the Trustees “and their attorney should
be sanctioned under Rule 11” because the Trust had asserted
“punitive damages in an amount nearly one hundred (100) times
the asserted actual damages.”
The Settlement Agreement
¶7 	The district court scheduled oral argument on the motion
to dismiss and the motion for sanctions. On the morning of the
scheduled argument, counsel for the Trust (Trust Counsel) and
counsel for the Association (Association Counsel) exchanged
emails. In those emails, Association Counsel made a settlement
offer. 	Under 	this 	proposed 	settlement, 	the 	Association 	and
Alpine would each make a payment to the Trust—without
admitting liability—to help cover repair costs. In return, the
Trust would dismiss the “entirety” of its claims against the
Association and Alpine. Under the proposed settlement, the
Trustees 	would 	also 	agree 	to 	never 	seek 	“election 	to, 	or
otherwise serve[] on, the Management Committee for so long as
they 	own 	any 	Unit” 	in 	the 	condominium 	project 	(the
Management Provision).
¶8 	Association Counsel confirmed that Alpine was “making
the same offer on the same terms.” Trust Counsel then sent an
email “confirm[ing] the settlement.” In that email, Trust Counsel
also included additional terms about additional repairs that the
Trustees wanted. Five minutes later, Trust Counsel sent another
email, simply stating: “Modified to allow for payment in 30 days
from today.”
¶9 	At 	the 	hearing 	later 	that 	day, 	Association 	Counsel
informed the court that the parties had “settled this matter about
30 minutes” earlier. The court asked whether it should “put
anything at all on the record” or whether the parties were “just

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going to do it all in writing.” Association Counsel and counsel
for Alpine both said that the parties would “do it in writing.”
About 	one 	week 	later, 	Association 	Counsel 	sent 	a 	draft
settlement agreement (Draft Agreement) to Trust Counsel.
¶10 	A 	few 	days 	later, 	Trust 	Counsel 	filed 	a 	motion 	to
withdraw 	as 	counsel 	for 	the 	Trust. 	Trust 	Counsel 	never
responded to Association Counsel, and neither party signed any
version of the Draft Agreement.
The Association’s Motion to Enforce
¶11 	The Association objected to Trust Counsel’s motion to
withdraw and filed a contemporaneous motion to enforce the
settlement agreement. The Association attached to this motion
both the Draft Agreement and the email exchange between Trust
Counsel and Association Counsel.
¶12 	The following week, Fritsche hand-delivered a letter to
the court. There, Fritsche said that the Trustees “did not agree
to” the Draft Agreement. She wrote that the Trust had “no
counsel” and that it was “searching for new counsel.” The letter
concluded 	by 	informing 	the 	court 	that 	the 	Trust 	needed
“additional time to obtain counsel” to oppose the motion to
enforce. A short time later, Trust Counsel filed a one-paragraph
objection to the motion to enforce.
¶13 	A few months after that, the Trust filed an amended
opposition to the motion to enforce through new counsel (New
Counsel). In the amended opposition, the Trust argued that
there was no settlement agreement between the parties because
“there was no meeting of the minds.” The Trust claimed that the
email exchange between Trust Counsel and Association Counsel
showed that the parties “each proposed multiple different terms
and those terms continued to change over time.” The Trust
further 	argued 	that 	because 	the 	parties 	agreed 	that 	their
agreement would be reduced to writing, and because no written

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agreement was ever signed, the emails could not be considered a
settlement agreement.
¶14 	In the alternative, the Trust argued that, even if there was
“a meeting of the minds,” the agreement was “unenforceable
under 	the 	statute 	of 	frauds.” 	According 	to 	the 	Trust, 	the
Management Provision required the Trust to “surrender an
interest in or power over or concerning real property.” See Utah
Code Ann. § 25-5-1 (LexisNexis 2019). For this reason, the Trust
argued that the statute of frauds required Trust Counsel to
obtain written authorization from the Trust to enter into that
settlement agreement. The Trust then claimed that Trust Counsel
lacked 	written 	authorization 	to 	enter 	into 	the 	settlement
agreement 	and 	that 	it 	was 	accordingly 	unenforceable. 	But,
notably, the Trust didn’t support this lack-of-authorization claim
with any affidavits or evidence.
¶15 	The 	court 	later 	heard 	argument 	about 	whether 	a
settlement agreement existed and, if so, whether the agreement
was enforceable under the statute of frauds. Association Counsel
began by arguing that the emails exchanged between him and
Trust Counsel, as well as their subsequent representations to the
court, 	collectively 	showed 	that 	there 	was 	a 	“definitive
settlement.” 	Association 	Counsel 	also 	argued 	that 	the
Management Provision did not implicate an “interest in real
property” and therefore was not subject to the statute of frauds.
¶16 	For 	his 	part, 	New 	Counsel 	reiterated 	the 	Trust’s
arguments that (i) there was no meeting of the minds, and (ii)
the agreement was unenforceable under the statute of frauds
because Trust Counsel did not have written authorization from
the 	Trust 	to 	surrender 	the 	right 	to 	participate 	on 	the
management committee. New Counsel also argued that Trust
Counsel did not act “in good faith” and “was actually self-
dealing” because settling the matter would have allowed Trust
Counsel to avoid a ruling on the rule 11 motion.

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¶17 	When arguments concluded, the district court ruled “that
the emails between the parties in this case do constitute a
binding settlement agreement between the parties.” The court
further held that it was “of no legal consequence” that the
parties failed to sign the Draft Agreement because “[i]f a written
agreement is intended to memorialize an oral agreement, a
subsequent failure to execute a written document does not
nullify the oral contract.” The court also ruled that “if there
[was] a statute of frauds defense,” the Trust “waived [it] through
counsel’s emails, through the parties’ actions, and through oral
representation at the court hearing.”
¶18 	In sum, the court held that the parties had reached an
enforceable settlement agreement and that the terms of that
agreement 	were 	the 	terms 	included 	in 	the 	email 	exchange
between Trust Counsel and Association Counsel—including the
Management Provision.
The Trust’s Rule 60(b) Motion
¶19 	The Trust later filed a rule 60(b) motion asking for relief
from the court’s order granting the motion to enforce. See Utah
R. Civ. P. 60 (allowing a court to grant parties “[r]elief from
judgment or order”). There, the Trust asked the court to “reform
the 	Settlement 	Agreement 	to 	provide 	relief 	from” 	the
“Management Provision pursuant to Rule 60(b)(6) of the Utah
Rules of Civil Procedure.” See id. R. 60(b)(6) (allowing a court to
“relieve a party” from an order based on “any other reason that
justifies relief”). 1
¶20 	In its motion, the Trust claimed that the Trustees had
“expressly informed” Trust Counsel that the Trust “would not
1. The Trust also challenged the enforceability of an offset
provision. But because the Trust has not raised any issue relating
to that offset provision on appeal, we do not address it further.

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agree” to the Management Provision. The Trust also informed
the court that it had been “reluctant” to bring “this issue” to the
court earlier because it did not want to waive its attorney-client
privilege, but it said that it was now ready to “present its full
case to the Court or, in other words, shed new light on the
circumstances of the purported Settlement Agreement.”
¶21 	This 	time, 	the 	Trust 	supported 	its 	position 	with
evidence—notably, a declaration from Fritsche and some emails.
In the declaration, Fritsche averred that she, “as trustee, [had]
objected to” the Management Provision “on behalf of the Trust.”
She also claimed that she was “unaware” that Trust Counsel had
planned on agreeing to the settlement offer in court. Fritsche
asserted that “the Settlement Offer was purportedly accepted
against [her] express instructions and over the Trust’s express
insistence that the . . . Management Provision of the Settlement
Offer be reduced to a more formal writing.”
¶22 	The Trust also attached a string of emails between Trust
Counsel and Fritsche, most of which had been exchanged within
an hour of the Association’s settlement offer. There, in response
to Trust Counsel’s communication of the offer to her, Fritsche
had 	said: 	“First 	response—leave 	it.” 	Trust 	Counsel 	had
responded that he thought the Trust “should accept this deal,”
but that he was “happy to reject it and continue to litigate.”
¶23 	The Trust also attached a subsequent email from Fritsche
to 	Trust 	Counsel. 	In 	reference 	to 	a 	settlement 	agreement
prepared by Trust Counsel, Fritsche wrote, “Nice document but
we will not sign it.” She also explained to Trust Counsel that she
thought the Management Provision was “unenforceable,” and
she instructed Trust Counsel to take the Management Provision
out because it was “not part of [the] lawsuit.”
¶24 	In response to the rule 60(b) motion, the Association
argued that the Trust “should have raised these arguments
earlier.” (Quotation simplified.) The Association further argued

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that 	the 	Trust 	“knowingly 	and 	deliberately 	withheld”
information from the court by waiting until the rule 60(b) motion
to 	put 	forth 	Fritsche’s 	declaration 	and 	the 	emails 	between
Fritsche and Trust Counsel.
The Association’s Motion for Attorney Fees
¶25 	In 	addition 	to 	opposing 	the 	rule 	60(b) 	motion, 	the
Association moved for attorney fees. It asked the court to award
the fees that the Association had already incurred, and would
from that point further incur, while enforcing the settlement
agreement, litigating the Trust’s rule 60(b) motion, and litigating
its own motion for attorney fees.
¶26 	The Association argued that it was entitled to such fees
because the Draft Agreement had a “prevailing party” attorney
fee 	provision. 	Because 	the 	Trust 	had 	only 	objected 	to 	the
Management 	Provision, 	the 	Association 	claimed 	that 	the
attorney fee provision from the Draft Agreement should be
considered as part of the parties’ settlement agreement.
¶27 	Alternatively, the Association argued that an attorney fee
provision in Deer Valley Ridge’s Condominium Declaration (the
Declaration) applied.2 The relevant provision states that “any
failure to comply with any of the provisions” of the “Act, this
Declaration, the Bylaws, and the rules and regulations of the
Management 	Committee, 	all 	agreements and 	determinations
lawfully 	made 	and/or 	entered 	into 	by 	the 	Management
Committee or the Unit Owners” are “grounds for an action by
the 	Management 	Committee 	or 	other 	aggrieved 	party 	for
injunctive relief or to recover any loss or damage resulting
therefrom, including costs and reasonable attorney’s fees.” The
Association 	further 	claimed 	that, 	to 	“the 	extent 	that 	the
2. 	The 	Declaration 	details 	the 	covenants, 	conditions, 	and
restrictions associated with the units.

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settlement emails addressed attorneys’ fees, the parties agreed to
bear 	their 	own 	fees 	up 	to 	the 	date 	of 	settlement.” 	The
Association thus argued that the Declaration allowed it to collect
attorney 	fees 	based 	on 	costs 	incurred 	after 	the 	“date 	of
settlement.”
¶28 	In 	its 	reply, 	the 	Trust 	claimed 	that 	the 	court 	had
previously held that the settlement agreement contained only
the terms agreed to in the email exchange. But in that email
exchange, the parties agreed that “each party [would] pay[] its
own 	counsel 	fees.” 	The 	Trust 	accordingly 	argued 	that 	the
attorney fee provision in the Draft Agreement was not “part of
the 	binding 	settlement 	agreement.” 	In 	addition, 	the 	Trust
asserted that the Declaration’s attorney fee provision did “not
govern” because the emails were a “subsequent” agreement that
superseded the Declaration.
The Court’s Order
¶29 	The court later held a hearing on the Trust’s rule 60(b)
motion and the Association’s motion for attorney fees. There, the
parties reiterated the arguments they had made in their motions.
And the Association made a new argument, not previously
raised in its earlier motion, that it was entitled to attorney fees
because the Trust’s rule 60(b) motion was “not brought or
asserted in good faith.”
¶30 	After arguments, the court denied the Trust’s rule 60(b)
motion. It ruled that the Trust’s claim that Trust Counsel did not
have written authorization to enter into the agreement had
already been denied by the court and that the Trust “had not
provided the court with a legally cognizable reason to reconsider
its prior determination.”
¶31 	The 	court 	next 	denied 	the 	Association’s 	motion 	for
attorney fees, doing so for three reasons. First, it held that the
terms 	“of 	the 	settlement 	agreement[] 	reached 	between 	the

Fritsche v. Deer Valley Ridge
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parties via email . . . did not include a prevailing party attorneys’
fee provision.” Second, it held that the settlement agreement
reached by email was “separate and apart from” the Declaration
and that the Declaration should not “be imported” into the
parties’ settlement agreement. Third, it concluded that the rule
60(b) motion was made in “good faith,” even if it was “fatally
flawed.”
¶32 	The Trust timely appealed the court’s orders that enforced
the settlement agreement and denied the rule 60(b) motion. The
Association, in turn, timely appealed the court’s order denying
its request for attorney fees.
ISSUES AND STANDARDS OF REVIEW
¶33 	The Trust first challenges the district court’s decision to
enforce 	the 	Management 	Provision 	from 	the 	settlement
agreement, claiming that it “is unenforceable under the statute of
frauds.” The “applicability of the statute of frauds is a question
of law to be reviewed for correctness.” Thompson v. Capener, 2019
UT App 119, ¶ 7, 446 P.3d 603 (quotation simplified).
¶34 	The Trust next challenges the district court’s denial of its
motion for relief under rule 60(b)(6) of the Utah Rules of Civil
Procedure. “This court reviews a district court’s denial of a rule
60(b) motion for an abuse of discretion because most such
motions are equitable in nature, saturated with facts, and call
upon judges to apply fundamental principles of fairness that do
not easily lend themselves to appellate review.” Norton v. Hess,
2016 UT App 108, ¶ 8, 374 P.3d 49 (quotation simplified).
¶35 	Finally, the Association challenges the 	district court’s
denial of its request for attorney fees. “The award of attorney
fees is a matter of law, which we review for correctness.” Jensen
v. Sawyers, 2005 UT 81, ¶ 127, 130 P.3d 325. As part of this
challenge, the Association also assails the district court’s finding

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that the Trust did not bring its rule 60(b) motion in bad faith. A
“lower court’s findings” on whether a claim was brought in bad
faith “will be afforded a substantial measure of discretion.”
Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47,
¶ 77, 469 P.3d 1003.
ANALYSIS
I. The Management Provision Is Enforceable.
¶36 	As 	discussed 	above, 	the 	district 	court 	granted 	the
Association’s 	motion 	to 	enforce 	the 	settlement 	agreement—
including, critically, the Management Provision. The Trust later
filed a rule 60(b) motion that asked the court to reform the
agreement and relieve it from enforcement of the Management
Provision, but the court declined to do so. For the reasons set
forth below, we affirm both rulings.
A. 	During litigation on the motion to enforce, the Trust did
not carry its burden of proving that Trust Counsel lacked
written authority.
¶37 	Under Utah’s statute of frauds,
[n]o estate or interest in real property, other than
leases for a term not exceeding one year, nor any
trust or power over or concerning real property or
in any manner relating thereto, shall be created,
granted, 	assigned, 	surrendered 	or 	declared
otherwise than by act or operation of law, or by
deed or conveyance in writing subscribed by the
party creating, granting, assigning, surrendering or
declaring 	the 	same, 	or 	by 	his 	lawful 	agent
thereunto authorized by writing.
Utah Code Ann. § 25-5-1 (LexisNexis 2019).

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¶38 	In the Trust’s view, the statute of frauds applies to the
Management 	Provision 	because 	it 	“surrendered 	the 	Trust’s
interest in a property right—the right to have its trustees seek
election to the management committee.” The Trust then argues
that the Management Provision is unenforceable because Trust
Counsel lacked “written authorization” to agree to it.
¶39 	We need not resolve the question of whether the statute of
frauds actually applies to the Management Provision. This is so
because, even if we assume that the statute of frauds does apply,
the Trust did not carry its burden of proving that Trust Counsel
was not “authorized by writing” to agree to that provision. See
id.
¶40 	A 	successful 	statute 	of 	frauds 	defense 	will 	“bar
enforcement of certain agreements that the law requires to be
memorialized in writing.” Golden Meadows Props., LC v. Strand,
2010 UT App 257, ¶ 22, 241 P.3d 375 (quotation simplified).
Importantly, the statute of frauds is an affirmative defense. See
Utah R. Civ. P. 8(c) (listing affirmative defenses, including the
“statute of frauds”). When a party raises an affirmative defense,
it bears the burden of proof for that defense. See, e.g., Salt Lake
City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 60,
435 P.3d 179 (“[A] respondent in a civil case generally bears the
burden of proof when asserting affirmative defenses.”); Seale v.
Gowans, 923 P.2d 1361, 1363 (Utah 1996) (explaining that civil
defendants bear the burden “of proving every element” of “any
affirmative defense”).
¶41 	“‘Burden of proof’ is a catchall term that encompasses
both the burden of persuasion and the burden of production and
generally refers to a party’s duty to prove a disputed assertion or
charge.” Jordan River Restoration Network, 2018 UT 62, ¶ 57 n.6; see
also Burden of Proof, Black’s Law Dictionary (11th ed. 2019) (“The
burden of proof includes both the burden of persuasion and the
burden of production.” (Emphases in original.)). The burden of

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persuasion is a “‘party’s duty to convince the fact-finder to view
the facts in a way that favors that party.’” Searle v. Milburn
Irrigation Co., 2006 UT 16, ¶ 49 n.2, 133 P.3d 382 (quoting Burden
of Persuasion, Black’s Law Dictionary (7th ed. 1999)). And the
burden of production is a “‘party’s duty to introduce enough
evidence on an issue to have the issue decided by the fact-finder,
rather than decided against the party in a peremptory ruling.’”
Id. (quoting Burden of Production, Black’s Law Dictionary (7th ed.
1999)).
¶42 	In light of this, we have previously recognized that a
party who raises a statute of frauds defense bears the burden of
proof on that defense. See Ashby v. Ashby, 2008 UT App 254, ¶ 11,
191 P.3d 35, aff’d in part, rev’d in part by Ashby v. Ashby, 2010 UT
7, 227 P.3d 246; see also Ashby, 2010 UT 7, ¶ 7 n.4 (noting that our
analysis on this “was correct”). So when the Trust asserted
before the district court that the Management Provision was
unenforceable under the statute of frauds, the Trust carried the
burden of proof to support that defense. This meant that the
Trust had the burden of persuasion—it needed to “convince the
[district court] to view the facts in a way that favor[ed]” the
Trust. See Searle, 2006 UT 16, ¶ 49 n.2. And the Trust also had the
burden of production—it needed to “introduce enough evidence
on [the statute of frauds issue] to have the issue decided by the”
district court. Id. To carry these burdens, the Trust therefore
needed 	to 	“introduce 	enough 	evidence” 	to 	“convince 	the
[district 	court]” 	that 	Trust 	Counsel 	did 	not 	have 	written
authorization to accept the Management Provision. See id.; Utah
Code Ann. § 25-5-1.3
3. Indeed, given the nature of the claim at issue here, it makes
particular sense that the Trust bore this burden. As noted, the
crux of the Trust’s claim is that its prior counsel was not
authorized in writing to agree that the Trust could no longer
(continued…)

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¶43 	In the Trust’s opposition to the motion to enforce—which
is where the Trust first raised the statute of frauds defense—the
Trust alleged that Trust Counsel “was never given written
authority to enter into” the Management Provision. But the Trust
did not include any evidence demonstrating that Trust Counsel
acted without the Trust’s written authority. Nor did the Trust
claim to have any evidence that Trust Counsel lacked written
authority. And the Trust’s argument about this at the hearing on
the motion to enforce was likewise unsupported. Indeed, at oral
argument on appeal, the Trust acknowledged that the evidence
allegedly showing that Trust Counsel lacked written authority
“did not come in until . . . the [rule] 60(b) motion.” All that the
Trust put in front of the court prior to the rule 60(b) motion was
its 	own 	conclusory 	and 	unsupported 	statement 	that 	Trust
Counsel 	did 	not 	have 	the 	necessary 	authorization. 	But
conclusory statements are not enough to satisfy a party’s burden
of proof. See Rose v. Office of Pro. Conduct, 2017 UT 50, ¶ 87 n.15,
424 P.3d 134 (“It goes without saying that one cannot meet one’s
burden of proof by making unsubstantiated allegations.”).
¶44 	Because 	the 	Trust 	offered 	only 	its 	own 	unsupported
statement, and because it did not support this statement with
any evidence that Trust Counsel lacked written authority, the
Trust did not carry its burden of proof when opposing the
Association’s motion to enforce the settlement agreement. The
district court therefore did not err in rejecting the Trust’s statute
(…continued)
have a seat on the management committee. This question is not
only factual, but it also necessarily implicates the precise terms
of 	the 	attorney-client 	relationship 	at 	issue. 	While 	the 	Trust
would have access to evidence of what authority it had (or had
not) given Trust Counsel, the Association would not have had
any such access. Thus, production of this evidence was uniquely
within the Trust’s control.

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of frauds defense and in granting the Association’s motion to
enforce the Management Provision.4
B. 	The district court did not abuse its discretion when it
denied the Trust’s rule 60(b) motion.
¶45 	Again, after the district court entered its order declaring
the settlement agreement to be enforceable, the Trust filed a rule
60(b) motion asking the court for “relief” from that order. In
support of that motion, the Trust produced, for the first time,
evidence of Trust Counsel’s lack of authority to agree to the
Management Provision. The Trust explained that it had not
introduced this evidence earlier because it was reluctant to
waive the attorney-client privilege. The court denied the rule
60(b) 	motion, 	however, 	concluding 	that 	the 	Trust 	had 	not
provided a “legally cognizable reason” for it to reconsider its
earlier decision. We affirm that decision.
¶46 	“Rule 60(b) is an equitable rule designed to balance the
competing interests of finality and fairness.” Menzies v. Galetka,
2006 UT 81, ¶ 63, 150 P.3d 480. Under that rule, courts “may
relieve a party or its legal representative from a judgment, order,
or proceeding” based on an enumerated list of reasons. Utah R.
Civ. P. 60(b). Here, the Trust based its motion on rule 60(b)(6)—
the rule’s residuary clause. A party asking for relief under rule
60(b)(6) must show, among other things, that there is “any other
reason that justifies relief.” Id.; see also Laub v. South Central Utah
Tel. Ass’n, 657 P.2d 1304, 1306–07 (Utah 1982) (explaining the
requirements of rule 60(b)’s residuary clause).
¶47 	“The power given to” courts by rule 60(b)(6) should be
“cautiously and sparingly invoked,” and it should be used “only
4. Given our disposition of this issue, we need not address the
Association’s alternative contention that the Trust waived its
statute of frauds defense.

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20200411-CA 	16 	2022 UT App 11
in unusual and exceptional instances.” Laub, 657 P.2d at 1307–08
(quotation simplified). The “most common other reason” for
which Utah “courts have granted relief under rule 60(b)(6) is
when the losing party fails to receive notice of the entry of
judgment in time to file an appeal.” Kell v. State, 2012 UT 25,
¶ 18, 285 P.3d 1133 (quotation simplified).
¶48 	On appeal, we “grant broad discretion” to a trial court’s
rule 60(b) rulings. Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198;
see also Kell, 2012 UT 25, ¶ 7. This deference is warranted because
“most” rule 60(b) rulings “are equitable in nature, saturated with
facts, and call upon judges to apply fundamental principles of
fairness that do not easily lend themselves to appellate review.”
Fisher, 2004 UT 92, ¶ 7.
¶49 	So far as we can tell, no Utah appellate decision has
addressed 	a 	scenario 	quite 	like 	this 	one, 	where 	a 	party
deliberately (and for its own reasons) chose to not present the
district court with evidence that was within its control when the
issue was initially litigated, only to later ask the court for relief
under rule 60(b)(6) based on that evidence after it lost in the
proceedings on the initial motion.
¶50 	But other courts have suggested that rule 60(b)(6) should
not be available in such circumstances. In Ackermann v. United
States, 	340 	U.S. 	193 	(1950), 	for 	example, 	a 	court 	entered 	a
denaturalization judgment against a citizen, and the citizen then
chose to not appeal. Id. at 195. The citizen later filed for relief
under rule 60(b)(6) of the Federal Rules of Civil Procedure,
claiming that he did not appeal because a government official
had advised him not to and because his attorney had told him
that he would have to sell his house to pay for the appeal. Id. at
196. The Supreme Court held that relief was not justified under
federal rule 60(b)(6) because the citizen “made a considered
choice not to appeal.” Id. at 198. Although the citizen’s “choice
was a risk,” the Court held that there “must be an end to

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20200411-CA 	17 	2022 UT App 11
litigation someday, and free, calculated, deliberate choices are
not to be relieved from.” Id.5
¶51 	Other courts have held similarly. See, e.g., Chang v. Smith,
778 F.2d 83, 86 (1st Cir. 1985) (“Rule 60(b) cannot be used to
relieve a litigant from improvident strategic choices.”); Budget
Blinds, Inc. v. White, 536 F.3d 244, 258 (3d Cir. 2008) (holding that
the court abused 	its discretion 	in granting relief 	when 	the
judgment 	“was 	the 	result 	of 	a 	deliberate 	choice” 	by 	the
defendant); Chambers v. Armontrout, 16 F.3d 257, 261 (8th Cir.
1994) (holding that relief was not justified when the defendant
“could have appealed” but chose not to); Blinder, Robinson & Co.
v. United States SEC, 748 F.2d 1415, 1421 (10th Cir. 1984) (holding
that relief was not justified when the party was represented by
“competent 	and 	experienced 	lawyers 	who 	made 	a 	tactical
decision which binds their clients”); Aldana v. Del Monte Fresh
Produce NA, Inc., 741 F.3d 1349, 1357 (11th Cir. 2014) (holding
that “Rule 60(b)(6) does not reward a party that seeks to avoid
the consequences of its own ‘free, calculated, deliberate choices’”
(quoting Ackermann, 340 U.S. at 198)); see also 11 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2864 (3d ed. 2021) (“Thus, the broad power granted
by clause (6) is not for the purpose of relieving a party from free,
calculated, and deliberate choices the party has made. A party
remains under a duty to take legal steps to protect [its] own
interests.”).
¶52 	In its rule 60(b)(6) motion, the Trust acknowledged that it
had previously withheld evidence about its communications
5. “Because the Utah Rules of Civil Procedure are patterned after
the Federal Rules of Civil Procedure, where there is little Utah
law interpreting a specific rule, we may also look to the Federal
Rules of Civil Procedure for guidance.” Drew v. Lee, 2011 UT 15,
¶ 16, 250 P.3d 48 (quotation simplified).

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20200411-CA 	18 	2022 UT App 11
with Trust Counsel because it was “reluctant” to waive the
attorney-client privilege. Put differently, the Trust admitted that
it 	had 	made 	a 	“deliberate 	choice[]” 	to 	initially 	oppose 	the
enforcement of the settlement agreement without presenting that
evidence. Ackermann, 340 U.S. at 198. While the Trust was
certainly entitled to make that decision, the district court was not
required to then grant the Trust a do-over under the guise of rule
60(b)(6) after the Trust lost in the initial proceedings.
¶53 	This is particularly so because the nature of the Trust’s
statute of frauds defense would have required it to waive the
attorney-client privilege all along. A party waives the attorney-
client privilege “by placing attorney-client communications at
the heart of a case.” Doe v. Maret, 1999 UT 74, ¶ 9, 984 P.2d 980,
overruled on other grounds by Munson v. Chamberlain, 2007 UT 91,
¶¶ 20–21, 173 P.3d 848. And attorney-client communications are
“at the heart of [the] case” when a client claims that counsel did
not have authority to enter into a settlement agreement. See Terry
v. Bacon, 2011 UT App 432, ¶ 15, 269 P.3d 188 (holding that
clients waived the attorney-client privilege by claiming “that
they 	did 	not 	authorize 	former 	counsel 	to 	enter 	into 	the
settlement agreement”).
¶54 	As discussed above, the Trust’s statute of frauds defense
was premised on its assertion that it had never authorized its
prior counsel in writing to agree to the Management Provision.
The Trust simply could not have prevailed on that defense
without waiving the privilege as to that issue. Given this, the
Trust’s decision to initially sit on its own evidence, only to then
try introducing it for the first time in support of its rule 60(b)(6)
motion, was not the kind of tactic that the district court was
required to countenance.
¶55 	Again, 	the 	purpose 	of 	rule 	60(b) 	is 	“to 	balance 	the
competing interests of finality and fairness.” Menzies, 2006 UT
81, ¶ 63. Here, the Trust invoked rule 60(b) after making a

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20200411-CA 	19 	2022 UT App 11
“deliberate choice[]” not to present evidence “at the heart of
[the] case” during the initial litigation about that issue. See
Ackermann, 340 U.S. at 198; Maret, 1999 UT 74, ¶ 9. Given that
choice, the district court did not abuse its “broad discretion”
when it denied that motion. See Fisher, 2004 UT 92, ¶ 7.
II. The Association Is Not Entitled to Attorney Fees.
¶56 	In its cross-appeal, the Association claims that the district
court “erred in denying the Association’s request for attorneys’
fees.” The Association makes three arguments to support this
claim. We reject all three.
¶57 	First, 	the 	Association 	argues 	that 	the 	Trust 	“never
objected” to the attorney fee provision in the Draft Agreement.
But 	the 	Draft 	Agreement 	was 	not 	the 	“binding 	settlement
agreement.” Rather, the “binding settlement agreement” was the
agreement 	that 	the 	parties 	reached 	in 	the 	email 	exchange
between 	Trust 	Counsel 	and 	Association 	Counsel. 	In 	that
exchange, the parties agreed that each party would “pay its own
counsel fees.” The court therefore correctly concluded that the
Association 	was 	not 	entitled 	to 	attorney 	fees 	under 	the
settlement agreement. See Turtle Mgmt., Inc. v. Haggis Mgmt., Inc.,
645 P.2d 667, 671 (Utah 1982) (“[T]he award of attorney’s fees is
allowed only in accordance with the terms of the contract.”).
¶58 	Second, the Association argues that it is “entitled to fees
under the Declaration” because the Trust failed to comply with
the settlement agreement.6 Under the Declaration,
6. The Trust asserts that this argument is unpreserved because,
before the district court, the Association only argued that it was
entitled to attorney fees because the “Declaration was the basis
for the underlying suit.” Because we resolve this issue in favor of
the Trust, we need not address its preservation argument. See
(continued…)

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20200411-CA 	20 	2022 UT App 11
[e]ach 	Unit 	Owner, 	tenant, 	subtenant 	or 	other
occupant 	of 	a 	Unit 	shall 	comply 	with 	the
provisions of the Act, this Declaration, the Bylaws,
and the rules and regulations of the Management
Committee, 	all 	agreements 	and 	determinations
lawfully 	made 	and/or 	entered 	into 	by 	the
Management Committee or the Unit Owners, when
acting in accordance with their authority, and any
failure to comply with any of the provisions thereof
shall be grounds for an action by the Management
Committee or other aggrieved party for injunctive
relief or to recover any loss or damage resulting
therefrom, 	including 	costs 	and 	reasonable
attorney’s fees.
(Emphases added.)
¶59 	This Court “interpret[s] the provisions of [a] Declaration
as we would a contract. If the Declaration is not ambiguous, we
interpret it according to its plain language.” View Condo. Owners
Ass’n v. MSICO, LLC, 2005 UT 91, ¶ 21, 127 P.3d 697 (quotation
simplified). Because the relevant language from the Declaration
is not ambiguous, we interpret it according to its plain language.
¶60 	As indicated by the emphasized language above, the plain
terms of the Declaration only entitle the Association to attorney
fees if the Management Committee brings “an action” against a
unit owner for a “failure to comply” with the terms of an
agreement made by the Management Committee.
(…continued)
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“[I]f the
merits of a claim can easily be resolved in favor of the party
asserting that the claim was not preserved, we readily may opt to do
so without addressing preservation.” (Emphasis in original.)).

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20200411-CA 	21 	2022 UT App 11
¶61 	But here, although the Association moved to enforce the
settlement 	agreement, 	the 	Management 	Committee 	never
brought “an action” against the Trust based on the Trust having
“fail[ed] to comply” with any particular term of that agreement.
The Declaration itself therefore does not entitle the Association
to attorney fees.
¶62 	Third, 	the 	Association 	argues 	that 	it 	“is 	entitled 	to
attorney fees under Utah Code § 78B-5-825.” Under this statute,
a “court shall award reasonable attorney fees to a prevailing
party if the court determines that the action or defense to the
action was without merit and not brought or asserted in good
faith.” Utah Code Ann. § 78B-5-825(1) (LexisNexis 2018).
¶63 	“To find that a party acted in bad faith,” a court must
conclude that “at least one of” three factors existed: “(i) [t]he
party lacked an honest belief in the propriety of the activities in
question; 	(ii) 	the 	party 	intended 	to 	take 	unconscionable
advantage of others; or (iii) the party intended to or acted with
the knowledge that the activities in question would hinder,
delay, or defraud others.” Migliore v. Livingston Fin., LLC, 2015
UT 9, ¶ 32, 347 P.3d 394 (quotation simplified). As explained
above, we “afford[] a substantial measure of discretion” to a
“lower court’s findings” on whether a claim was brought in bad
faith. Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT
47, ¶ 77, 469 P.3d 1003.
¶64 	Below, the court stated that it “simply ha[d] not been
provided with a factual basis to make any of those three specific
findings.” 	This 	ruling 	was 	unsurprising 	given 	that 	the
Association had not made its bad faith argument in its motion
for attorney fees but had instead raised it for the first time at the
hearing on the motion. And even there, the Association merely
asserted that the rule 60(b) motion was brought in bad faith
because the evidence presented in that motion “was already
known” by the Trust.

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20200411-CA 	22 	2022 UT App 11
¶65 	Given the sparse arguments made by the Association at
the hearing and the “substantial measure of discretion” we must
afford to the district court, we conclude that the district court did
not abuse its discretion in ruling that the Association was not
entitled to attorney fees under section 78B-5-825(1).7
CONCLUSION
¶66 	When the Trust opposed the Association’s motion to
enforce 	the 	settlement 	agreement 	by 	claiming 	that 	the
Management Provision violated the statute of frauds, it raised an
affirmative defense for which it bore the burden of proof. It then
failed to carry that burden because it presented no evidence that
Trust 	Counsel 	lacked 	written 	authority 	to 	enter 	into 	the
settlement agreement. The district court therefore did not err by
rejecting that defense and granting the Association’s motion to
enforce. Although the Trust later attempted to cure this failure in
its rule 60(b) motion, the Trust has not shown that the court
abused its discretion when it denied that request.
¶67 	The district court also did not err in concluding that the
Association 	was 	not 	entitled 	to 	attorney 	fees 	under 	the
7. Before the district court, the Association only argued that
Trust Counsel brought the rule 60(b) motion in bad faith. On
appeal, however, the Association claims that the Trust also acted
in 	bad 	faith 	at 	various 	other 	stages 	of 	the 	litigation. 	But
“[w]hether a claim or defense was not brought or asserted in
good faith is a fact-intensive mixed question,” and it ultimately
“requires a factual determination of a party’s subjective intent.”
Pinder v. Duchesne County Sheriff, 2020 UT 68, ¶ 102, 478 P.3d 610
(quotation 	simplified). 	Given 	that 	the 	Association 	did 	not
provide the district 	court with the opportunity to consider
whether these additional acts were performed in bad faith, we
are in no position on appeal to consider whether this was so.

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20200411-CA 	23 	2022 UT App 11
settlement agreement or the Declaration, nor did the court abuse
its discretion in concluding that the Trust did not act in bad faith
when it brought its rule 60(b) motion.
¶68 	For the foregoing reasons, we affirm.