The Appellate Group

UDAK Properties LLC v. Canyon Creek Commercial Center

UDAK Properties LLC v. Canyon Creek Commercial Center, 2020 UT App 163 (Hagen, J.)


Canyon Creek and UDAK Properties, LLC, both owned parcels of land in a shopping center in Spanish Fork. Canyon Creek 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. The district court determined that UDAK was a Responsible Owner and awarded UDAK attorney fees. Canyon Creek appealed. TheUtah Court of Appeals affirmed, holding:

  1. UDAK unambiguously qualifies as a Responsible Owner. The district court erred when it concluded that the term was ambiguous and resorted to extrinsic evidence to prove the point. Canyon Creek’s interpretation would treat “building area” synonymously with “building,” a separately defined term. The court gives effect to each provision when it interprets contractual language. Thus, the floor area of the building area must mean something different from the floor area of the building. The square footage is therefore based on the maximum square footage of floor area allowed without regard to the actual square footage in the buildings.
  2. The district court did not err in its award of attorney fees. 
    • First, the time limits in Utah Rules of Civil Procedure 73(a) and 59(e) do not apply in this case because the fees awarded in the Second Supplemental Judgment were incurred in responding to motions filed after the First Supplemental Judgment was entered. Thus, the district court’s additional award was proper.
    • Second, the district court retained power to award the fees it awarded in the Second Supplemental Judgment, even though an appeal was pending. Even where a district court is otherwise divested of jurisdiction due to an appeal, the district court retains the power to act on collateral matters.
    • Canyon Creek’s first five arguments regarding attorney fees are unpreserved, and the court does not consider them.
  3. Canyon Creek 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.
  4. UDAK is entitled to attorney fees on appeal as the prevailing party.

Read the full court opinion