Dale K. Barker Co PC CPA Profit Sharing v. Turner , 2021 UT App 119 ( 2021 )

2021 UT App 119THE UTAH COURT OF APPEALS
DALE K. BARKER COMPANY PC CPA PROFIT SHARING PLAN,
Appellee,
v.
SHAWN D. TURNER,
Appellant.
Amended Opinon*
No. 20200070-CA
Filed November 4, 2021
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 180902299
Shawn D. Turner, Appellant Pro Se
Scarlet R. Smith and R. Jesse Davis, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 Appellant Shawn D. Turner and Appellee Dale K. Barker
Company PC CPA Profit Sharing Plan (the Plan) entered into a
written loan agreement (the Note) on July 30, 2010. The Plan
loaned Turner $25,000, which he was supposed to repay within
sixty days, but Turner failed to make any payments for over four
* This Amended Opinion replaces the Opinion in Case No.
20200070-CA issued on August 19, 2021. After our opinion
issued, the Appellee filed a petition for rehearing under rule 35
of the Utah Rules of Appellate Procedure, and we called for a
response. We grant the petition for the purpose of addressing the
award of attorney fees on appeal in paragraphs 45 and 46.
Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
years. However, pursuant to an agreement with the Plan’s
trustee, Dale K. Barker, payments were made on the loan in 2015
and 2017.
¶2 When a lawsuit was brought in 2018 to recover the
outstanding balance on the loan, Turner moved for summary
judgment on the grounds that the suit was barred by the statute
of limitations. The district court denied that motion. It later held
a bench trial, concluded that Turner had defaulted on the loan,
awarded damages as set forth in the Note, and awarded attorney
fees and costs to the Plan.
¶3 Turner appeals, and we affirm.
BACKGROUND
¶4 In the summer of 2010, Turner approached Dale Barker
and asked him for a loan. Turner knew Barker through an
existing attorney-client relationship: Turner had been
performing legal collections work for Barker’s company, Dale K.
Barker Co. PC Certified Public Accountant (the Company), often
on a 33% contingency fee basis. Eventually the loan was agreed
upon, with the Plan—as opposed to the Company or Barker
himself—as the creditor.
¶5 Turner drafted the Note memorializing the July 30, 2010
loan. Under the terms of the Note, the Plan loaned Turner
$25,000, which was to be repaid to the “Note Holder”—the
Plan—within sixty days of delivery of the loan proceeds. The
Note further specified that it would accrue interest at a “yearly
rate of 60.0% simple interest.” In the event that Turner failed to
pay off the loan within the required sixty days, the Note clarified
that, at its discretion and at any time thereafter, the Note Holder
could send Turner a written notice demanding that within thirty
days he pay the full amount of the principal and interest
accrued. Relatedly, the Note also contained a provision allowing
for “late charges for overdue payments.” (Cleaned up.)
20200070-CA 2 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
¶6 Turner failed to pay off the loan within sixty days as
required by the Note. In fact, Turner made no payments on the
Note before it came due. However, the Plan did not immediately
send Turner a written notice of default or demand that he repay
the debt. In addition, Turner continued to perform legal work for
the Company.
¶7 As of February 2015, Turner had still not made any
payments on the loan, which had ballooned to approximately
$90,000. But during that month, Barker received $120,000 in
settlement proceeds from a case that Turner had worked on. This
prompted Turner to send Barker an email on February 17, in
which he stated,
As you are aware I am entitled to 1/3 o[f] the
settlement. I want to apply all of that to the amount
owing under the note to the [Plan]. Is that
acceptable?
Later that same day, in response to an email that Barker sent,
Turner stated,
My reference to the 1/3 arrangement was simply,
with the intent to let you know that I wanted
anything that would come to me to be applied to
the debt I owe to the [Plan]. . . . I was simply trying
to make clear that I did not expect to receive
anything that I would keep out of this upcoming
payment.
Barker agreed and applied the one-third of the settlement
proceeds to which Turner was entitled toward the outstanding
loan. Thus, approximately $40,000 was paid on the loan in
February 2015.
¶8 No further payments were made on the loan until
November 2017. During October of that same year, Barker
received $7,500, in settlement proceeds from another case
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that Turner had worked on. Pursuant to the agreement
reached in February 2015, Barker applied towards the loan the
one-third of these proceeds to which Turner was entitled.
Accordingly, approximately $2,500 was paid on the loan in
November 2017.
¶9 On February 9, 2018, Turner received a letter from a law
firm “retained as counsel for [the Company] to assist in the
enforcement of [the] past due loan.” In relevant part, the letter
stated,
As you know, on July 30, 2010, Dale K. Barker P.C.
Profit Sharing Plan extended to you a loan in the
[principal] amount of $25,000.00. . . . [Y]ou have
failed in your obligations to repay the loan within
the 60 day period.
Pursuant to the Note, Dale K. Barker Co. P.C. (the
“Note Holder”) hereby gives you notice of your
default. . . . If you do not pay the overdue balance
. . . in full within the time period described above,
the Note Holder may pursue legal action to enforce
the Note.
¶10 On April 3, 2018, having received no further payments on
the loan, a lawsuit was filed to enforce the Note and recover the
outstanding balance on the loan. But as originally filed, the
complaint listed the Company as the plaintiff. Before Turner
answered the complaint, it was amended so that the Plan instead
appeared as the plaintiff.
¶11 Turner then filed a motion for summary judgment, in
which he asserted that the lawsuit was untimely because it was
filed after the applicable six-year statute of limitations. The
district court denied Turner’s motion, agreeing with the Plan
that the partial payments made towards the debt in February
2015 and November 2017 tolled the statute of limitations, and
thus the statute of limitations “r[a]n anew” with each of those
20200070-CA 4 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
payments. And as a result, the lawsuit, brought within six years
of the partial payments, was timely.
¶12 The district court later held a bench trial, found that
Turner had defaulted on the Note, and concluded that “Plaintiff
[was] entitled to judgment on the Note.” It thus awarded the
amount outstanding on the loan: $113,750. Of this total award,
$2,500 consisted of two late fees that the district court assessed—
pursuant to a “late charges for overdue payments” provision in
the Note—for the two payments made toward the loan after it
was due: a $1,250 late fee for the payment in February 2015 and
another $1,250 late fee for the payment in November 2017.
(Cleaned up.) Turner objected to $1,250 of this award, arguing
that the terms of the Note contemplated only one payment and
thus only one late fee, regardless of the number of late payments.
The district court rejected this argument.
¶13 Subsequently, the Plan filed a motion to recover its
attorney fees and costs. This request was based on a provision of
the Note that allowed the Plan to be reimbursed for these
expenses. Turner argued that no expenses were recoverable
under the Note because the Plan had failed to satisfy a condition
referenced therein. Turner also argued that certain fees the Plan
requested were not compensable. The district court rejected both
arguments and awarded $32,774 in attorney fees and $527.50 in
costs.
¶14 Turner appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 First, Turner challenges the district court’s denial of his
motion for summary judgment, asserting that it erroneously
concluded that the statute of limitations had been tolled. This is
a legal question that we review for correctness. See Russell
Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 18, 108 P.3d 741 (“The
applicability of a statute of limitations and the applicability of [a
20200070-CA 5 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
tolling provision] are questions of law, which we review for
correctness.” (cleaned up)).
¶16 Second, Turner challenges $1,250 of the district court’s
damages award, asserting that this amount constitutes
additional late fees not awardable under the terms of the Note.
Because Turner is assailing the district court’s interpretation of
the Note, we review this issue for correctness. See Brady v. Park,
2019 UT 16, ¶ 29, 445 P.3d 395 (“We review a district court’s
interpretation of a contract for correctness.”).
¶17 Third, Turner challenges the district court’s award of
attorney fees and costs pursuant to the Note’s provision relating
to the reimbursement of expenses. In doing so, Turner first
argues that the district court erred in awarding any attorney fees
or costs, asserting that the plain language of the Note precluded
any such award. We review this issue for correctness. See id.; see
also Jensen v. Sawyers, 2005 UT 81, ¶ 127, 130 P.3d 325 (“The
award of attorney fees is a matter of law, which we review for
correctness.”). Turner also argues that the district court erred in
calculating the amount of attorney fees, asserting that certain
fees awarded were not compensable. We review the district
court’s calculation of reasonable attorney fees for abuse of
discretion but review any conclusions of law for correctness. See
Gilbert Dev. Corp. v. Wardley Corp., 2010 UT App 361, ¶ 16, 246
P.3d 131 (“Calculation of reasonable attorney fees is in the sound
discretion of the trial court . . . [but] we review a trial court’s
conclusions of law regarding attorney fees for correctness . . . .”
(cleaned up)).
ANALYSIS
I. Statute of Limitations
¶18 Turner’s first contention is that the district court should
have dismissed the case because the six-year statute of
limitations had run. The agreement is governed by the Uniform
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Commercial Code (U.C.C.), and the applicable statute of
limitations is codified in Utah Code section 70A-3-118. In
relevant part, the statute reads:
[A]n action to enforce the obligation of a party to
pay a note payable at a definite time must be
commenced within six years after the due date or
dates stated in the note or . . . within six years after
the accelerated due date.
Utah Code Ann. § 70A-3-118(1) (LexisNexis 2009).
¶19 Although the lawsuit was filed more than six years after
the loan was due, the district court found that the lawsuit was
timely because the partial payments toward the debt in 2015 and
2017 tolled the running of the statute of limitations, with each
payment functionally restarting the six-year limitations period.
In so ruling, the district court relied on one of Utah’s general
tolling statutes, which reads in relevant part:
An action for recovery of a debt may be brought
within the applicable statute of limitations from the
date:
(a) the debt arose;
(b) a written acknowledgment of the debt or
a promise to pay is made by the debtor; or
(c) a payment is made on the debt by the
debtor.
Id. § 78B-2-113(1) (LexisNexis 2018).
¶20 Turner first argues that the district court erred by even
applying this general tolling provision. Specifically, he asserts
that “looking at the plain language of [section 70A-3-118(1)]
there is no provision for restarting the statute of limitations in
the event of a partial payment,” and that this omission was
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“deliberate.” From this, he argues that the legislature intended to
preclude the operation of the general tolling statute.
¶21 We disagree. The official comments to UCC section 3-
118—the provision on which Utah Code section 70A-3-118 was
modeled after and is identical to—belie Turner’s argument about
the purported significance of the fact that the statute does not
specifically include its own tolling provision for partial
payments. And while the official comments to the UCC are “not
authoritative,” see J.R. Simplot Co. v. Sales King Int’l, Inc., 2000 UT
92, ¶ 40, 17 P.3d 1100, they “are by far the most useful aids to
interpretation and construction, promoting reasonably uniform
interpretation of the code by the courts,” see Power Sys.
& Controls, Inc. v. Keith’s Elec. Constr. Co., 765 P.2d 5, 10 n.3 (Utah
Ct. App. 1988) (cleaned up); see also Lewiston State Bank v.
Greenline Equip., LLC, 2006 UT App 446, ¶ 17 n.8, 147 P.3d 951.
Specifically, the official comments state,
The only purpose of Section 3-118 is to define the
time within which an action to enforce an
obligation, duty, or right arising under Article 3
must be commenced. Section 3-118 does not
attempt to state all rules with respect to a statute of
limitations. For example, the circumstances under
which the running of a limitations period may be tolled
is left to other law pursuant to Section 1-103.
U.C.C. § 3-118 cmt. 1 (Am. L. Inst. & Unif. L. Comm’n 2020)
(emphasis added). And the provision of the UCC referenced
therein, section 1-103, is codified at Utah Code section 70A-1a-
103. It in turn provides that “[u]nless displaced by the particular
provisions of this title, the principles of law and equity . . .
supplement its provisions.” Utah Code Ann. § 70A-1a-103(2)
(LexisNexis 2009). Therefore, because “[g]eneral principles of
law and equity are meant to supplement the provisions of the
UCC unless displaced by its particular provisions,” J.R. Simplot,
2000 UT 92, ¶ 29, the absence of an express exemption within
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Utah Code section 70A-3-118 indicates that it is indeed subject to
and supplemented by our tolling provision for partial payments,
see also U.C.C. § 1-103 cmt. 3 (“State law . . . increasingly is
statutory . . . [and] the mere fact that an equitable principle is
stated in statutory form rather than in judicial decisions should
not change the court’s analysis of whether the principle can be
used to supplement the Uniform Commercial Code . . . .”).
¶22 Moreover, case law from other jurisdictions further
supports our interpretation of the statute. See Lewiston State Bank,
2006 UT App 446, ¶ 15 n.7 (“Because the Uniform Commercial
Code is national in character, case law interpreting it is also
national. Consequently, . . . we rely on case law from other
jurisdictions to interpret the Code.” (quoting Power Sys.
& Controls, 765 P.2d at 10 n.2)). Indeed, various other courts
have interpreted their respective versions of Utah Code section
70A-3-118 and have reached the same conclusion. See Zelby
Holdings, Inc. v. Videogenix, Inc., 82 N.E.3d 1067, 1070–72 & 1072
n.5 (Mass. App. Ct. 2017) (collecting cases and noting that
courts throughout the country have embraced the “applicability
of the partial payment rule to § 3-118”); Keota Mills & Elevator
v. Gamble, 2010 OK 12, ¶¶ 17–18, 243 P.3d 1156 (holding
that Oklahoma’s statutory tolling provision for partial
payments operated to supplement Oklahoma’s version of section
70A-3-118 because Oklahoma’s version of Utah Code section
70A-1a-103 “provides for general statutes to supplement the
UCC”). And interpreting Utah Code section 70A-3-118
consistently with these other courts serves a primary purpose of
the UCC, that is, “to make uniform the law among the various
jurisdictions.” See Utah Code Ann. § 70A-1a-103(1)(c); see also
UCC § 1-103 cmt. 3 (noting that other statutes supplement the
UCC to the extent that “they are consistent with the purposes
and policies of the Uniform Commercial Code”). So, for the
foregoing reasons, we reject Turner’s argument that the district
court erred by concluding that the tolling provision for
partial payment of a debt, as set forth in Utah Code section 78B-
2-113(1), supplements the UCC provision at issue, Utah Code
section 70A-3-118(1).
20200070-CA 9 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
¶23 Turner nevertheless argues that the tolling provision does
not apply under the facts of this case because he never made
“direct payments on the Note.” He points out that the statute
allows for tolling when “a payment is made on the debt by the
debtor,” Utah Code Ann. § 78B-2-113(1)(c) (emphasis added), and
thus argues that any payments toward the debt “had to be made
by [him]” to trigger this tolling provision. He asserts that his
argument is supported by Holloway v. Wetzel, 45 P.2d 565 (Utah
1935), which he cites for the proposition that “payments made
by third parties [do] not restart the running of the statute of
limitations against the original borrowers.”
¶24 These arguments are also unconvincing, and a brief
glance at Holloway illustrates why. In that case, our supreme
court explained that the partial payment of a debt tolls the
statute of limitations because the payment is “regarded as
evidence of a willingness and obligation to pay the residue, as
conclusive as would be a personal written promise to that
effect.” See 45 P.2d at 568 (quoting Marienthal v. Mosler, 16 Ohio
St. 566, 570 (Ohio 1866)). From this, the court explained that a
partial payment must either be made by the debtor himself, “or
under his immediate direction,” so as to “warrant the
assumption of a willingness to pay equal to [the debtor’s]
written promise to that effect.” Id. (quoting Marienthal, 16 Ohio
St. at 570). Applying the law to the facts of that case, the Holloway
court held that partial payments made by one obligor did not
toll the statute of limitations as to a different obligor who had no
knowledge of, did not consent to, and indeed did not have
“anything to do with” those payments. See id.
¶25 Holloway thus acknowledges that the overriding inquiry is
substantive and involves a determination of whether the
payment at issue evidences the debtor’s acknowledgment and
willingness to pay the debt. See Butcher v. Gilroy, 744 P.2d 311,
314 (Utah Ct. App. 1987) (applying Holloway and framing the
inquiry as a question as to whether a particular payment
permitted an inference that the debtor “renewed [his] promise to
pay the [creditor] or acknowledged any obligation on his part to
20200070-CA 10 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
pay the [creditor]”). And directly contrary to Turner’s formalistic
argument, we have specifically explained that Holloway permits
a payment “by a third party at [the debtor’s] direction” to satisfy
the tolling provision. See id.
¶26 With this in mind, we have no trouble concluding that the
payments made in 2015 and 2017 were at Turner’s direction and
indeed evidenced the existence of the debt and his desire to
repay it. One need only look to the February 2015 emails in
which Turner stated that he “did not expect to receive anything”
of the “upcoming [settlement] payment” and told Barker to take
Turner’s one-third share of the settlement proceeds and apply
them to the debt he owed to the Plan. And as a matter of fact,
Turner’s principal defense at trial involved conceding that he did
direct Barker to apply those fees toward the loan, rather than
pay him his fees directly, and that the 2015 and 2017 payments
were made pursuant to that directive.1 Given these
circumstances, the mere fact that the payments on the debt were
not directly made by Turner is immaterial.
¶27 Based on the foregoing, the district court did not err in
determining that the underlying lawsuit was timely because of
the partial payments made toward the loan in 2015 and 2017.
1. Turner’s defense at trial was that this subsequent agreement
existed, but rather than the amounts owed to him merely being
applied to and reducing the amounts owed on the loan, the
agreement was that the loan would be extinguished regardless
of the amounts actually recovered in his ongoing collection
cases. Indeed, the district court made factual findings to this
effect (but ultimately rejected Turner’s argument that the
agreement contemplated extinguishing the amount owed on the
loan in its entirety), which Turner has not challenged.
20200070-CA 11 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
II. Damages
¶28 Turner next contends that the district court awarded
excessive damages by adding, under a provision of the Note,
$2,500 in late charges—comprised of two $1,250 charges. Turner
argues that, under the terms of the Note, only a single late
charge may be imposed.
¶29 The provision at issue is entitled “Late Charges for
Overdue Payments,” and is set forth in section 6 of the Note,
which outlines various terms in the event that Turner failed to
pay the loan in full by the due date. The provision is specifically
denominated as section 6(A), and reads as follows:
6. BORROWER’S FAILURE TO PAY AS
REQUIRED
(A) Late Charges for Overdue Payments
If the Note Holder has not received the full amount
of any payment by the end of 15 calendar days after
the date it is due, I will pay a late charge to the
Note Holder. The amount of the charge will be
5.0000% of my overdue payment of principal and
interest. I will pay this late charge promptly but
only once on each late payment.
(Emphasis added.) Interpreting this provision, the district court
assessed a late charge for each “payment[] made after the Note
was originally due”—a $1,250 charge for the payment made in
2015, and another for the payment made in 2017.
¶30 Turner argues the district court erred because, by its
“plain language,” the Note “does not permit for the awarding of
an additional penalty each time a payment is made.” As an
initial matter, Turner argues that the term “payment” as used in
section 6(A) is defined in a different section of the Note—
20200070-CA 12 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
specifically section 3, which sets forth the date that the loan was
due, and states in its entirety:
3. PAYMENTS
I will pay the full principal and interest within
sixty days of delivery to me of the loan proceeds. I
will make my payment as directed by the Note
Holder.
Turner asserts that, under section 3, “[t]here was only one
‘payment’ due under the Note,” which was to occur within sixty
days of the loan proceeds being delivered. He then reasons that
this “is the only payment on which there is a due date which is
the triggering event set forth” in section 6(A), and he concludes
that only a single late fee could be assessed for failing to pay the
loan in full by the date it came due.
¶31 However, Turner has not carried his burden of persuasion
on appeal because he has not engaged with the district court’s
reasoning. See Bad Ass Coffee Co. of Hawaii Inc. v. Royal Aloha Int’l
LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624 (explaining that an
appellant “cannot persuade us that reversal is appropriate
without acknowledging the district court’s decision and dealing
with its reasoning”); Hansen v. Kurry Jensen Props. LLC, 2021 UT
App 54, ¶ 43 (“With some frequency we have affirmed the ruling
of the court below when an appellant fails to address the basis of
the lower court’s ruling.”). Specifically, the district court’s
interpretation attempted to reconcile the fact that the Note
contemplated only one payment due with the language applying
a late fee to “each late payment.” But on appeal, Turner simply
ignores the “each late payment” language—and instead merely
reiterates his own interpretation of the Note without ever
commenting on the import of the language that formed the basis
of the district court’s ruling. So, because Turner has not
demonstrated why the district court’s reasoning was erroneous,
he is not entitled to reversal.
20200070-CA 13 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
III. Attorney Fees and Costs
A. Award of Any Fees or Costs
¶32 Turner next contends that the district court erred by
awarding the Plan $32,774 in attorney fees and $527.50 in costs
under a provision of the Note allowing for the reimbursement of
expenses. Turner argues that neither expense should have been
awarded because the Plan failed to satisfy an express condition
to obtaining any such award.
¶33 As is relevant, section 6 of the Note states,
(C) Notice of Default
If I am in default, the Note Holder may send me a
written notice telling me that if I do not pay the
overdue amount by a certain date, the Note Holder
may require me to pay immediately the full
amount of Principal which has not been paid and
all the interest that I owe on that amount. That date
must be at least 30 days after the date on which the
notice is mailed to me or delivered by other means.
....
(E) Payment of Note Holder’s Costs and Expenses
If the Note Holder has required me to pay immediately
in full as described above, the Note Holder will have
the right to be paid back by me for all its costs and
expenses in enforcing this Note to the extent not
prohibited by applicable law. Those expenses
include, for example, reasonable attorney’s fees.
(Emphasis added.)
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¶34 As he did below, Turner asserts that compliance with
section 6(C) is a “condition precedent” to any award of expenses
under section 6(E).2 The district court concluded that to the
extent Turner’s interpretation was correct, the written notice of
default sent to him on February 9, 2018, satisfied the procedures
set forth in section 6(C). See supra ¶ 9. Turner argues that the
district court’s ruling was erroneous because sections 6(C) and
6(E) both explicitly refer to the “Note Holder” sending the
written notice of default, meaning that the Plan had to send the
written notice of default, and he asserts that the February 9 letter
was instead sent by the Company.
¶35 However, directly contrary to his argument, Turner
previously admitted—in his answer to the amended complaint—
that the Plan did send him the requisite notice under section
6(C).3 This constitutes a judicial admission that fatally undercuts
his argument that expenses should not have been awarded
under section 6(E) of the Note.4 See Kranendonk v. Gregory
2. Turner also argues that under the plain language of the Note,
fees and costs are conditioned on the Note Holder sending “a
notice threatening to accelerate the debt” and that the February
9, 2018 letter could not constitute a notice threatening
acceleration, because the loan came due in 2010. See Acceleration
Clause, Black’s Law Dictionary (11th ed. 2019) (explaining that
acceleration “requires the debtor to pay off the balance sooner
than the due date”). We reject this argument. Acceleration is not
mentioned anywhere in these provisions.
3. Specifically, Turner admitted without qualification: “On
February 9, 2018, the Trustee [of the Plan] sent [me] a notice of
default of the Note, pursuant to the terms of the Note, giving
[me] 30 days to pay the overdue balance.”
4. The impact of Turner’s admission in his answer to the
amended complaint was argued both below and again on
appeal. It is unclear if the district court relied on the doctrine of
(continued…)
20200070-CA 15 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
& Swapp, PLLC, 2014 UT App 36, ¶ 23, 320 P.3d 689 (“An
admission in a pleading is . . . a judicial admission . . . .” (cleaned
up)). And as our supreme court recently explained,
A judicial admission is a formal waiver of proof
that relieves an opposing party from having to
prove the admitted fact. It also bars the party who
made the admission from disputing it. The effect of
a judicial admission is that once it has been made,
the party cannot present any evidence that
contradicts that statement.
(…continued)
judicial admissions in rejecting Turner’s argument that the
purported condition precedent was not satisfied: the district
court’s statement that “Plaintiff issued a ‘Notice of Default of July
30, 2010 Note’ to Defendant on February 9, 2018” could be read
as implicitly accepting the Plan’s argument that Turner had
already admitted that the Plan (the plaintiff in the operative
amended complaint) sent the written notice on the date
referenced. (Emphasis added.) Regardless, whether the district
court in fact relied on the doctrine of judicial admissions is
immaterial to our resolution of Turner’s appeal because we can
“affirm a trial court’s decision on any ground supported by the
record.” See Lee v. Williams, 2018 UT App 54, ¶ 50 n.5, 420 P.3d
88. And given that the Plan explicitly raised the same judicial
admission argument to the district court that we now accept on
appeal, our ground for affirmance is indeed supported by the
record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT
App 29, ¶ 25, 344 P.3d 180 (“An alternative ground is apparent
on the record if the record contains sufficient and
uncontroverted evidence supporting the ground or theory to
place a person of ordinary intelligence on notice that the
prevailing party may rely thereon on appeal.” (cleaned up)).
20200070-CA 16 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
Luna v. Luna, 2020 UT 63, ¶ 27, 474 P.3d 966 (cleaned up); see also
Roberts v. Roberts, 2014 UT App 211, ¶ 41, 335 P.3d 378 (“Unless
withdrawn or amended, admissions have the effect of
withdrawing a fact from issue and dispensing wholly with the
need for proof of the fact.” (cleaned up)); cf. Saghian v.
Shemuelian, 835 F. App’x 351, 353 (10th Cir. 2020) (“[E]ven if the
post-pleading evidence conflicts with the evidence in the
pleadings, admissions in the pleadings are binding . . . .”
(quoting Missouri Housing Dev. Comm’n v. Brice, 919 F.2d 1306,
1315 (8th Cir. 1990))).
¶36 Nevertheless, Turner asserts that he “should be relieved
from his judicial admission.” (Citing Baldwin v. Vantage Corp.,
676 P.2d 413 (Utah 1984).) In Baldwin, our supreme court
acknowledged that the rule on binding judicial admissions is
“not absolute” and that “[t]he trial court may relieve a party
from the consequences of a judicial admission.” Id. at 415. In that
case, our supreme court held that the trial court did not abuse its
discretion by relieving a party of an admission made in its
pleadings where the pleading itself evidenced that the issue was
mistakenly admitted and the parties thereafter treated the issue
as though it was a material factual dispute to be resolved at trial.
See id. at 415–16. Turner argues that his admission was similar to
that in Baldwin, and thus he asserts that he should be relieved of
his admission.
¶37 Turner’s argument misses the mark. While it is true that
the district court had discretion to relieve Turner of what is
otherwise a binding admission, Turner never asked the district
court to invoke its discretion to do so; he never requested the
district court allow him to withdraw or modify his admission.
On appeal, then, we are presented with a presumptively binding
admission and no ruling by the district court to review. In other
words, Turner’s argument that he “should be relieved from his
judicial admission” is unpreserved, and we decline to consider it
any further. See True v. Utah Dep’t of Transp., 2018 UT App 86,
¶ 24, 427 P.3d 338 (“It is incumbent on parties to preserve in the
district court the issues they wish to assert on appeal or risk
20200070-CA 17 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
losing the opportunity to have the appellate court address that
issue.” (cleaned up)).5
¶38 Based on the foregoing, we reject Turner’s argument that
the district court erred by awarding attorney fees and costs
under the Note. As a result, we move to Turner’s arguments
about the amount of the attorney fees and costs awarded.
B. Amount of Fees Awarded
¶39 Turner also contends that the district court nevertheless
erred by awarding too much in attorney fees.6 He raises two
arguments in support of this contention: (1) the district court
awarded fees “relating to issues on which [the Plan] did not
prevail” and (2) the district court impermissibly awarded the
Plan attorney fees “for services rendered to other parties.” We
address each argument in turn.
5. Turner does not argue that any preservation exceptions are
applicable. See True v. Utah Dep’t of Transp., 2018 UT App 86,
¶ 29, 427 P.3d 338 (“If a party has not preserved an issue
asserted on appeal, the party asserting the issue on appeal must
establish the applicability of one of the preservation exceptions
to persuade an appellate court to reach that issue.” (cleaned up)).
6. While Turner challenges the amount of attorney fees awarded
under the Note, he has not ascertainably challenged the amount
of costs awarded under the Note. Instead, Turner’s argument
about costs is premised on the notion that he was correct in
arguing that no expenses should have been awarded under the
Note, and that any award of costs “is therefore restricted to those
costs otherwise awardable by statute or rule,” and he then goes
on to argue why certain costs are not recoverable under rule 54
of the Utah Rules of Civil Procedure. But we have rejected
Turner’s argument that the Plan cannot recover attorney fees
and costs under the Note, and because Turner does not clearly
challenge the amount of costs awarded under the Note, we need
not address his arguments about rule 54.
20200070-CA 18 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
¶40 Turner’s first argument is that $2,496.50 in attorney fees
awarded to the Plan should be eliminated from the overall
award because these fees relate to an issue on which it “did not
prevail”—specifically, a statement of discovery issues Turner
filed that was granted in part and denied in part.7 In support of
his argument, he simply asserts that Gilbert Development Corp. v.
Wardley Corp., 2010 UT App 361, 246 P.3d 131, establishes a per
se rule that “[w]here a prevailing party in litigation was
unsuccessful on motions within the litigation, like summary
judgment motions, the prevailing party is not entitled to fees
relating to those motions.”
¶41 We disagree. As explicitly stated in Gilbert, “[i]f attorney
fees are recoverable by contract” a party may recover those fees
“attributable to the successful vindication of contractual rights.”
Id. ¶ 52 (quoting Cache County v. Beus, 2005 UT App 503, ¶ 16,
128 P.3d 63). A natural consequence of this rule is that, as a
general matter, a prevailing party will not be awarded attorney
fees for fees related to an unsuccessful motion. See Beus, 2005 UT
App 503, ¶ 16 (collecting cases). And while Turner’s argument
essentially restates this general principle, he fails to address the
ramifications of, or even acknowledge, the fact that the Plan
partially prevailed in opposing his statement of discovery
issues—Turner’s statement of discovery issues was explicitly
denied in part, with a significant percentage of Turner’s requests
denied outright. In other words, Turner’s conclusory argument
fails to demonstrate that the fees awarded to the Plan were not
“attributable to the successful vindication of [its] contractual
rights,” Gilbert, 2010 UT App 361, ¶ 52 (quoting Beus, 2005 UT
App 503, ¶ 16), and accordingly, Turner fails to demonstrate that
the district court erred by awarding these fees. We therefore
7. Turner also argues that, because the district court denied both
parties’ requests for costs when ruling on the motion initially,
“[a]llowing fees already denied by the Court is an abuse of the
system.” But Turner offers no argument as to why that would
be. Thus, we do not reach this argument’s merits.
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decline to disturb this aspect of the district court’s award of
attorney fees.
¶42 Turner’s second argument is that the $2,242 of fees
“incurred prior to April 5, 2018 should be disallowed” because
these fees were apparently incurred by the Company and not the
Plan. Basically, Turner’s argument seems to be premised on the
notion that, because the Company was listed as the plaintiff in
the original complaint—prior to the complaint being amended
on April 17, 2018, to list the Plan as the plaintiff instead—fees
accruing from legal work early in the case were thus necessarily
incurred by the Company.
¶43 However, we decline to address this argument because it
is inadequately briefed. See Broderick v. Apartment Mgmt.
Consultants, LLC, 2012 UT 17, ¶ 11, 279 P.3d 391 (“We have
discretion to not address an inadequately briefed argument.”
(cleaned up)). Specifically, Turner fails to develop the facts
necessary to understand and support his argument. For instance,
it is unclear why all fees incurred “prior to April 5, 2018 should
be disallowed”—Turner fails to explain the significance of this
seemingly arbitrary date (fees were still incurred between this
date and the date that the complaint was eventually amended to
include the Plan as the plaintiff). Likewise, Turner’s largely
conclusory references to the accounting sheet,8 which lists the
attorney fees incurred, fails to demonstrate which entity
incurred or actually paid individual fees, either initially or in the
end. Essentially, Turner argues that various fees were
inextricably incurred by the Company but leaves it to this court
8. In support of its motion for attorney fees, the Plan attached a
verified Declaration for Attorney’s Fees and Costs with an
associated “Ledger Report” from the law firm that represented
the Plan in the lawsuit, which itemized the “attorney and
paralegal fees” the law firm had billed “[f]rom February 2018
through May 2019” for “representing the Plaintiff” in the
lawsuit.
20200070-CA 20 2021 UT App 119Dale K. Barker Company PC CPA Profit Sharing Plan v. Turner
to parse the record and figure out how or why that might be.
This we will not do. Accordingly, we decline to address Turner’s
argument, and therefore decline to disturb this aspect of the
district court’s award of attorney fees.
¶44 Based on the foregoing, Turner has failed to demonstrate
that the district court erred in awarding any of the particular fees
he challenges on appeal. As a result, we decline to reduce the
amount of attorney fees awarded.
C. Attorney Fees on Appeal
¶45 The district court awarded the Plan attorney fees and
costs under the provisions of the Note, and we affirm this award.
“It is well-settled that a provision for payment of attorney fees in
a contract includes attorney fees incurred by the prevailing party
on appeal as well as at trial, if the action is brought to enforce the
contract.” Tronson v. Eagar, 2019 UT App 212, ¶ 39, 457 P.3d 407(cleaned up). “Having received attorney fees in the underlying
action and under the conclusions reached in this opinion,” the
Plan is “entitled to recover reasonable attorney fees incurred on
appeal.” See Phillips v. Skabelund, 2021 UT App 2, ¶ 69, 482 P.3d
237. We therefore grant the Plan’s “request for fees and costs on
appeal and remand for the district court to calculate the award.”
See Thomas v. Thomas, 2021 UT App 8, ¶ 45, 481 P.3d 504.
CONCLUSION
¶46 The district court correctly determined that the
underlying lawsuit was timely. And Turner has failed to
establish that the district court erred in assessing two late fees in
its overall calculation of damages or in awarding attorney fees
and costs. Accordingly, we affirm the district court’s ruling but
remand for the court to calculate the Plan’s attorney fees and
costs reasonably incurred on appeal.
20200070-CA 21 2021 UT App 119