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UDAK Properties LLC v. Spanish Fork, UT Realty LLC

UDAK Properties LLC v. Spanish Fork, UT Realty LLC, 2020 UT App 164 (Hagen, J.)

Property

SFUR and UDAK Properties, LLC, both owned parcels of land in a shopping center in Spanish Fork. SFUR contested UDAK’s status as a “Responsible Owner” according to an amended declaration defining Responsible Owners as those “with a combined building area” of 40,000 square feet or more. UDAK’s allowable floor area was more than 40,000 square feet, but its actual floor area was closer to 35,000 square feet. In its First Supplemental Judgment (FSJ), the district court determined that UDAK was a Responsible Owner and, in its Second Supplemental Judgment, awarded UDAK attorney fees. SFUR appealed the FSJ outside the 30-day window within which to file a notice of appeal. The Utah Court of Appeals affirmed, holding:

  1. Because SFUR’s notice of appeal was not filed within thirty days of the FSJ, the court lacks jurisdiction to consider SFUR’s challenges to any of the rulings that merged into that final judgment. But SFUR filed a timely notice of appeal from the Second Supplemental Judgment, which was a separate and distinct order.
  2. For the same reasons set forth in UDAK Properties LLC v. Canyon Creek Commercial Center, 2020 UT APP 163, the court rejects SFUR’s challenge to the award of attorney fees. 
    • SFUR did not make a valid tender of attorney fees when it attached a photocopy of a check to its filing. Filing a photocopy of a check is not “actual production” of tender. Furthermore, the court did not award attorney fees under the Utah Code; it awarded fees under the terms of the contract provision. That award was proper under the contract provision.
  3. UDAK is entitled to attorney fees on appeal as the prevailing party.

Read the full court opinion

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