Fritsche v. Deer Valley Ridge ( 2022 )


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    2022 UT App 11
    THE UTAH COURT OF APPEALS
    DEBORAH J. FRITSCHE AND R. WINSLOW WHITE,
    Appellants and Cross-appellees,
    v.
    DEER VALLEY RIDGE AT SILVER LAKE ASSOCIATION OF UNIT
    OWNERS AND ALPINE SKI PROPERTIES INC.,
    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 RYAN D. TENNEY authored this Opinion, in which
    JUDGES JILL M. POHLMAN and RYAN 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.”
    Fritsche v. Deer Valley Ridge
    ¶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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    Fritsche v. Deer Valley Ridge
    ¶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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    Fritsche v. Deer Valley Ridge
    ¶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
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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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    Fritsche v. Deer Valley Ridge
    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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    Fritsche v. Deer Valley Ridge
    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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    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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    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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    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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    “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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    Fritsche v. Deer Valley Ridge
    [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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    ¶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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    ¶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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    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.
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