Udak Props. LLC v. Spanish Fork

480 P.3d 1052

UDAK PROPERTIES LLC, Appellee,

v.SPANISH FORK, UT REALTY LLC, Appellant.

No. 20190821-CA

Court of Appeals of Utah.

Filed December 10, 2020

Kenneth A. Okazaki, Bruce Wycoff, and Taryn N. Evans, Salt Lake City, Attorneys for Appellant

Greggory J. Savage, Gregory S. Roberts, and Carol A. Funk, Salt Lake City, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

HAGEN, Judge:

¶1 Spanish Fork, UT Realty LLC (SFUR) appeals from the district court's grant of declaratory relief (Original Judgment) to UDAK Properties LLC declaring that UDAK is a "Responsible Owner" under a restrictive covenant binding the parties. SFUR argues that the provision is unambiguous and provides that UDAK is not a Responsible Owner. Alternatively, SFUR argues that even if the provision is ambiguous, we should reverse because the district court made two evidentiary errors. SFUR also challenges the attorney fees awarded to UDAK (First Supplemental Judgment). Finally, SFUR claims that the district court incorrectly concluded that its tender of judgment was legally insufficient and that UDAK was entitled to an award of additional attorney fees (Second Supplemental Judgment). Because SFUR filed a timely notice of appeal from the Second Supplemental Judgment only, we conclude that we lack jurisdiction to review the district court's rulings that became final and appealable upon entry of the First Supplemental Judgment. We further conclude that SFUR's tender was invalid and that the district court properly awarded attorney fees in the Second Supplemental Judgment in connection with the invalid tender. Accordingly, we affirm.

BACKGROUND

¶2 This appeal stems from a disagreement as to the meaning of the term "Responsible Owner" in a restrictive covenant (Declaration) that binds the owners of parcels in a shopping center in Spanish Fork, Utah. The consent of Responsible Owners is required before constructing or modifying buildings in the shopping center.

¶3 SFUR is the owner of the shopping center parcel referred to as the "Kmart Parcel" in the Declaration. After a dispute arose as to whether UDAK was a Responsible Owner, UDAK filed a declaratory relief action, naming the other property owners in the shopping center as co-defendants. UDAK sought a declaration that "it is a Responsible Owner, and that it possesses all the rights provided to Responsible Owners in the Declaration."

¶4 SFUR, along with its two co-defendants, counterclaimed, seeking a declaration that UDAK was not a Responsible Owner.¹ The court found that the Responsible Owner provision of the Declaration was "facially ambiguous as a matter of law," and set the matter for a bench trial. After conclusion of the trial, the court ruled that UDAK was a Responsible Owner and entered the Original Judgment, indicating that UDAK was entitled to its reasonable attorney fees in an amount to be determined. SFUR did not file a notice of appeal after the entry of the Original Judgment. On November 1, 2018, the court awarded UDAK $251,498.65 in attorney fees in the First Supplemental Judgment. SFUR did not file a timely notice of appeal.

¶5 In an apparent effort to satisfy the judgment while still preserving its right of appeal, SFUR filed a document titled "Tender of Judgment Amount Plus Accrued Interest" to which it attached a photocopy of a check made out to UDAK for the total judgment. The actual check was never sent to UDAK. Shortly thereafter, SFUR filed a document titled "Motion for Order Abating Interest and Declaring Money Judgment Satisfied." The court denied the motion, concluding that SFUR had not made a valid tender and granting UDAK additional attorney fees. The Second Supplemental Judgment, awarding UDAK an additional $27,979 in attorney fees, was entered on September 5, 2019.

¶6 On October 2, 2019, less than thirty days after the Second Supplemental Judgment, SFUR filed its notice of appeal.

ANALYSIS

¶7 SFUR urges us to reach a number of issues on appeal related to the Original Judgment ruling that UDAK is a Responsible Owner, the First Supplemental Judgment awarding attorney fees, and the Second Supplemental Judgment rejecting SFUR's invalid tender and awarding additional attorney fees. As a threshold matter, we first consider UDAK's argument that, because SFUR did not file its notice of appeal until October 2, 2019, this court lacks jurisdiction to hear all but SFUR's last claim. Specifically, UDAK claims that the First Supplemental Judgment, "relating to enforcement of the underlying ruling, constituted a ‘separate judgment[ ] ... individually subject to the rules of appellate procedure concerning appeals.’ " (Quoting Ross v. Barnett , 2018 UT App 179, ¶ 20 n.6, 436 P.3d 306.)

¶8 "Whether appellate jurisdiction exists is a question of law which we decide in the first instance." State v. Alvarez , 2020 UT App 126, ¶ 14, 473 P.3d 655 (cleaned up). "We have jurisdiction to review only those rulings from which a timely notice of appeal was filed." Ross , 2018 UT App 179, ¶ 18, 436 P.3d 306. Rule 4(a) of the Utah Rules of Appellate Procedure directs a party to file an appeal "within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). "It is axiomatic in this jurisdiction that failure to timely perfect an appeal is a jurisdictional failure requiring dismissal of the appeal." A.S. v. R.S. , 2017 UT 77, ¶ 35 n.12, 416 P.3d 465 (cleaned up).

¶9 Here, the notice of appeal was filed on October 2, 2019. Only the Second Supplemental Judgment falls within the preceding thirty-day period. In the Second Supplemental Judgment, the district court, having concluded that SFUR's tender was invalid, awarded attorney fees to UDAK for work done in connection with SFUR's purported tender and related motions. Accordingly, we have jurisdiction over SFUR's claim that the "tender was legally sufficient and provided no basis for an attorney-fee award."

¶10 All the remaining issues on appeal relate to rulings made prior to the entry of the First Supplemental Judgment. Nevertheless, quoting North Fork Special Service District v. Bennion , 2013 UT App 1, 297 P.3d 624, SFUR invokes the merger of judgment doctrine and argues that "[e]ach ruling in this case before the district court's [Second Supplemental Judgment] ... was ‘one link in the chain of rulings leading to’ that final Amended Judgment." See id. ¶ 18. SFUR reasons that once the Second Supplemental Judgment was entered, all other orders merged into one final, appealable judgment.

¶11 SFUR's arguments misapply the merger of judgment doctrine. The district court resolved all outstanding issues between the parties when it awarded attorney fees incurred in connection with the declaratory action and entered the First Supplemental Judgment. Accordingly, "all preceding interlocutory rulings that were steps toward final...