Rapoport v. Four Lakes Village Homeowners Ass'n ( 2013 )


Menu:
  •                      
    2013 UT App 78
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    RICHARD N. RAPOPORT AND JEAN A. RAPOPORT,
    Plaintiffs and Appellants,
    v.
    FOUR LAKES VILLAGE HOMEOWNERS ASSOCIATION, INC.,
    Defendant and Appellee.
    Memorandum Decision
    No. 20110801‐CA
    Filed March 28, 2013
    Third District, Silver Summit Department
    The Honorable Keith A. Kelly
    No. 090501020
    Richard N. Rapoport, Appellant Pro Se
    Matthew B. Hutchinson, Attorney for Appellee
    JUDGE STEPHEN L. ROTH authored this Memorandum Decision,
    in which JUDGES JAMES Z. DAVIS
    and CAROLYN B. MCHUGH concurred.
    ROTH, Judge:
    ¶1     Plaintiffs Richard N. Rapoport and Jean A. Rapoport appeal
    from the district court’s decision to uphold Defendant Four Lakes
    Village Homeowners Association, Inc.’s (the HOA) denial of the
    Rapoports’ request to install and use certain lighting fixtures in
    common areas of the condominium complex where the Rapoports
    own a condominium unit. We affirm in part and reverse and
    remand in part.
    Rapoport v. Four Lake Village Homeowners
    I. The District Court Improperly Decided Issues Not Raised by
    the Pleadings and Not Tried by the Parties’ Consent.
    ¶2     The Rapoports first argue that, in deciding their claim for
    declaratory relief, the district court improperly decided factual
    issues that were neither raised by the pleadings nor tried by the
    parties’ consent and made the same error in entering postjudgment
    findings and conclusions.
    ¶3      The Rapoports’ original application to the HOA requested
    that they be allowed to install several different lighting fixtures in
    common areas of the condominium complex, including spotlights
    that illuminated aspen trees in a common area just behind their
    unit (the aspen spotlights), as well as other spotlights and tiki lights
    affixed to and illuminating a limited common area including their
    rear patio. After much review, the HOA ultimately denied their
    request. The Rapoports then brought a claim for declaratory relief
    against the HOA. The district court ruled in favor of the HOA, and
    the court included in the scope of its decision all of the lighting
    fixtures that had been the subject of the HOA’s decision. The
    Rapoports objected, asserting that their claim for declaratory relief
    had been limited to the aspen spotlights and that the HOA’s
    decision regarding the other spotlights and the tiki lights had not
    been raised by the pleadings or tried by the parties’ consent. Based
    on its review of the pleadings and the evidence at trial, the district
    court concluded that the tiki lights and other spotlights were
    appropriately within the scope of its decision. The court reasoned
    that in the complaint and at trial the primary issue raised by the
    Rapoports was the propriety of the HOA’s decision to deny their
    request to install lighting fixtures, a decision that generally
    implicated and extended to all of the lighting fixtures. On review,
    however, we conclude that only the issue involving the aspen
    spotlights was pleaded and tried.
    ¶4      The complaint describes the aspen spotlights as the factual
    basis for the Rapaports’ claim: “[The Rapoports] have installed two
    low voltage spot lights (the ‘Lights’) on the rear exterior wall of the
    20110801‐CA                        2                  
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    Unit over the deck. When lighted the Lights illuminate two [aspen]
    trees in the Common Area to the rear of the Unit . . . .” In
    explaining the facts underlying the Rapoports’ claim, the complaint
    then repeatedly refers to “the Lights,” which is the designated
    reference for the aspen spotlights. None of the other lighting
    fixtures are ever specifically mentioned or described in the
    complaint.
    ¶5     The HOA asserts, however, that the complaint is broad
    enough to encompass all of the lighting fixtures that were within
    the scope of its original decision. It points out that the complaint
    reads, “A controversy exist[s] between [the Rapoports] and [the
    HOA] regarding the interpretation of the CC&Rs and the right of
    [the Rapoports] to continue to maintain and use the Lighting. [The
    Rapoports] contend that they are entitled to use and maintain the
    Lighting in accordance with the CC&Rs.” The Rapoports then
    request generally that the district court review the HOA’s decision
    and “enter a declaratory judgment declaring that [the Rapoports]
    have the right to maintain and use the Lighting.” The HOA
    concludes that because its decision encompassed all of the lighting
    fixtures, the Rapoports’ request that the district court review the
    basis for its decision naturally extends to all the lighting fixtures.
    ¶6      The rules applicable to the construction of pleadings do not
    support the HOA’s contention. “Specific averments in pleading[s]
    are usually given precedence over general ones regarding the same
    matter.” Lord v. Shaw, 
    665 P.2d 1288
    , 1289 (Utah 1983). “The specific
    averments are deemed to supplant, limit and control the general
    allegations.” 
    Id.
     The Rapaports’ complaint specifically identifies
    only the aspen spotlights, designated as “the Lights,” and neither
    mentions nor describes the other spotlights or the tiki lights. On a
    few occasions the complaint also refers to “the Lighting,” which is
    never specifically defined. Although this term could be a reference
    to all of the lighting fixtures, considering the complaint as a whole,
    there is no reasonable basis to conclude that it is meant to expand
    the factual scope of the complaint to the other lighting fixtures that
    are never specifically mentioned. Rather, it seems more likely that
    20110801‐CA                       3                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    the term is simply used as an alternate reference to the aspen
    spotlights. We therefore conclude that the “specific averments”
    regarding the aspen spotlights “supplant, limit and control the
    more general allegations” referring to the HOA’s decision.1 See 
    id.
    Reading the Rapoport’s complaint in this way, we conclude that it
    is limited to the aspen spotlights.
    ¶7      We further conclude that the scope of the Rapaports’ claim
    was not expanded at trial by the parties’ express or implied
    consent. Rule 15 of the Utah Rules of Civil Procedure provides that
    “[w]hen issues not raised by the pleading are tried by express or
    implied consent of the parties, they shall be treated in all respects
    as if they had been raised in the pleadings.” Utah R. Civ. P. 15(b).
    “Under rule 15 . . . , a trial court may infer an amendment to the
    pleadings if the issue is tried by the [p]arties’ express or implied
    consent.” Lee v. Sanders, 
    2002 UT App 281
    , ¶ 7, 
    55 P.3d 1127
    .
    “Implied consent to try an issue may be found . . . where evidence
    is introduced without objection, [and] where it appear[s] that the
    parties understood the evidence [was] to be aimed at the
    unpleaded issue.” Id. ¶ 10 (alterations in original) (citation and
    internal quotation marks omitted). On the other hand, “[a] trial
    court may not base its decision [to infer an amendment to the
    pleadings] on an issue that was tried inadvertently.” Id. (citation
    and internal quotation marks omitted).
    A trial court’s application of rule 15(b) is a
    legal question that we review for correctness.
    However, because the trial court’s determination of
    whether the issues were tried with all parties’
    1
    Indeed, both parties originally interpreted the scope of
    the complaint in this way, as is demonstrated by a discussion
    among the parties and the district court when the Rapoports
    moved to amend the complaint to include as part of their claim
    for declaratory relief the HOA’s decision on the other spotlights.
    See infra ¶¶ 8‐9.
    20110801‐CA                      4                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    implied consent is highly fact intensive, we grant the
    trial court a fairly broad measure of discretion in
    making that determination under a given set of facts.
    Berg v. Berg, 
    2012 UT App 142
    , ¶ 4, 
    278 P.3d 1071
     (mem.) (citations
    and internal quotation marks omitted).
    ¶8     At a hearing three weeks before trial, the Rapoports moved
    to amend their complaint to include the HOA’s decision on the
    other spotlights as part of their claim for declaratory relief.2 The
    HOA opposed the motion, and at one point during the hearing it
    argued that “the only lights . . . in this case are the [aspen]
    spotlights and that’s because those are the only spotlights that [the
    Rapoports] made reference to in their complaint.” The district court
    denied the Rapoports’ motion, explaining that the issues tried
    would be limited to the issues raised by the pleadings.
    ¶9   Before opening statements on the first day of trial, the
    Rapoports again addressed their motion to amend the pleadings.
    MR. RAPOPORT: Your Honor, at the hearing on the
    motion for summary judgment we had a discussion
    of what the issues would be at the trial and your
    Honor stated that they would be strictly limited to
    the pleadings unless the parties agreed to include
    additional issues. We did not so agree so it’s my
    understanding that we were only going to deal with
    the complaint and the answer.
    The complaint is a complaint for declaratory
    relief in which we allege that under the declaration
    [we] are authorized to use what I call the spotlights
    to light the trees behind [the] unit. And . . . that’s
    2
    In moving to amend the pleadings, the Rapoports made
    no mention of the tiki lights.
    20110801‐CA                      5                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    been denied by the [HOA] and those are the issues
    before the Court.
    THE COURT: So from your perspective the only
    issue is the use of the spotlights to light the trees?
    MR. RAPOPORT: To light the trees.
    THE COURT: Okay.
    The HOA did not challenge the Rapoports’ characterization of the
    issue that would be tried.3
    ¶10 During the trial, the tiki lights and other spotlights were
    mentioned on occasion, but it appears that these lighting fixtures
    were mentioned to give context to the events that underlie this
    lawsuit.4 Rather, the aspen spotlights were the focus of the trial,
    including the parties’ opening and closing statements. Thus, even
    with the deference that is accorded to the district court on such
    matters, given the parties’ and the court’s statements at the pretrial
    hearing and at the commencement of trial as well as the focus on
    the aspen spotlights at trial, we conclude that the HOA’s decision
    3
    The HOA argues that the district court was simply ac‐
    knowledging rather than agreeing with the Rapoports’ position.
    But viewing this discussion in full and in the context of the
    court’s statements and the HOA’s argument at the previous
    hearing, we cannot agree with the HOA’s characterization.
    4
    While the HOA argues that issues relating to the tiki
    lights and other spotlights were actually tried, it does not
    provide any citations to the trial transcript to show exactly
    where and how those issues were tried. Rather, the HOA directs
    us only to the dialogue among the parties and the district court
    that we have described above. See supra ¶¶ 8‐9.
    20110801‐CA                       6                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    as it extended to the tiki lights and the other spotlights was not
    tried by the express or implied consent of the parties.
    ¶11 We therefore conclude that issues concerning the tiki lights
    and other spotlights were neither pleaded in the complaint nor
    tried by the parties’ consent. Accordingly, we reverse the district
    court’s decision to the extent that it concluded otherwise and
    decided those issues and remand for appropriate modification of
    the judgment.
    II. The District Court Appropriately Upheld the HOA’s Decision
    To Deny the Rapoports’ Request To Install the Aspen Spotlights.
    ¶12 The Rapoports argue that the district court erred in
    upholding the HOA’s decision to deny their request to install and
    use the aspen spotlights. In addressing this issue, the Rapoports
    rely primarily on the Declaration of Covenants, Conditions and
    Restrictions (the Declaration), which sets forth the rights and duties
    of both the HOA and the owners of units in this condominium
    complex.5
    ¶13 As we have explained, the Rapoports installed spotlights
    that illuminated two aspen trees in a common area of the
    condominium complex directly behind their unit and then
    requested approval from the HOA for the use and installation of
    the aspen spotlights.6 The HOA ultimately denied the Rapoports’
    5
    In deciding this issue, the district court made several
    factual findings that the Rapoports have not challenged on
    appeal. Consequently, we recite the facts as the court found
    them.
    6
    The Rapoports requested approval from the HOA only
    after installing the spotlights, which was contrary to a
    requirement in the Declaration that an owner of a condominium
    unit must obtain prior written consent of the HOA before
    (continued...)
    20110801‐CA                       7                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    request because they failed to obtain approval for the installation
    and use of the aspen spotlights from one of their neighbors.7 The
    Rapoports now challenge the HOA’s decision, arguing that “[t]here
    is no provision of the Declaration, nor any provision in the rules
    adopted by the [HOA] which would require an owner to obtain the
    approval of a neighbor in order to exercise his or her rights [to use
    the common areas] under the Declaration.” They further argue that
    “[r]equiring [the] approval of neighbors . . . is clearly arbitrary
    since the approval of a neighbor is not subject to any standard.”
    Stated differently, the Rapoports’ arguments are essentially that
    requiring neighbor approval is not consistent with the Delcaration
    and that a neighbor approval requirement is arbitrary, in any
    event, because there is no standard to guide or constrain its
    application.
    ¶14 The Declaration states in section 3.05 that “[e]xcept as
    otherwise provided in this declaration, any Owner shall be entitled
    to nonexclusive use of the Common Areas . . . in any manner that
    does not hinder or encroach upon the rights of other Owners and
    is not contrary to any rules or regulations promulgated by the
    [HOA].”8 Based on this language, there are potentially two bases
    6
    (...continued)
    making additions or alterations to any common area or limited
    common area.
    7
    In the district court and on appeal, the HOA presented
    several other bases for its decision denying the Rapoports’
    request to install the aspen spotlights. However, as this appears
    to be the primary basis for the HOA’s denial of the Rapoports’
    request and we affirm the district court’s decision on these
    grounds, it is unnecessary for us to reach the other bases raised
    by the HOA.
    8
    According to the Rapoports, the aspen spotlights were
    actually installed in a limited common area but cast light into
    (continued...)
    20110801‐CA                      8                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    on which the HOA might deny the Rapoports’ request to install
    and use the spotlights under the Declaration: (1) the use is contrary
    to some rule or regulation promulgated by the HOA or (2) the use
    hinders or encroaches upon the rights of other owners to use and
    enjoy the common areas.
    ¶15 The Rapoports’ argument focuses to a significant extent on
    the absence of rules or regulations applicable to the installation and
    use of lighting fixtures in common areas. Under the Declaration,
    the HOA is granted authority to “make reasonable rules and
    regulations governing . . . the [c]ommon [a]reas . . . , which rules
    and regulations shall be consistent with the rights and duties
    established in th[e] Declaration.” According to the Rapoports,
    when they installed the spotlights there was no existing rule or
    regulation that specifically addressed common area lighting
    restrictions or requirements and none have been adopted since.
    Rather, the HOA has adopted what it describes as the lighting
    guidelines.9 And the HOA agrees with the Rapoports that the
    lighting guidelines are not rules or regulations but are instead
    guidelines established for the purpose of providing some
    consistent standard for the HOA to follow in reviewing requests
    8
    (...continued)
    and illuminated aspen trees in a common area. But despite this
    potential distinction between the location where the spotlights
    are actually installed and where the spotlights cast light, the
    parties’ arguments are limited to the portions of the Declaration
    that address common areas.
    9
    The lighting guidelines were adopted after the Rapoports
    had installed the aspen spotlights and after they had submitted a
    request to the HOA for approval of the spotlights. However, the
    parties agree that the lighting guidelines were not adopted
    specifically because of the Rapoports’ spotlights. Rather, the
    HOA had been in the process of drafting the lighting guidelines,
    and the timing of the Rapoports’ request and the implementation
    of the lighting guidelines was simply coincidental.
    20110801‐CA                       9                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    that relate to the installation and use of exterior lighting fixtures.
    The parties never address the weight or authority that the lighting
    guidelines should be afforded. So although we do not treat the
    lighting guidelines as rules or regulations per se, they are
    nonetheless relevant to this analysis because the HOA relied on
    them to guide its application of the Declaration to the Rapoports’
    request.
    ¶16 We first address the Rapoports’ argument that there is no
    provision in the Declaration that would require them to obtain a
    neighbor’s approval to install and use lighting fixtures in a
    common area. In making this argument, the Rapoports focus on the
    portion of section 3.05 of the Declaration that provides that an
    owner cannot use a common area in “any manner . . . [that is]
    contrary to any rules or regulations promulgated by the [HOA],”
    contending that in the absence of such rules and regulations there
    is no reasonable basis for the HOA to have denied their application.
    The Rapoports ignore, however, the portion of section 3.05 that
    provides that an owner may not use a common area in a manner
    that “hinder[s] or encroach[es] upon the rights of other Owners.”
    While this language does not explicitly establish a requirement to
    seek out neighbor approval, it does seem to support the
    requirement of the HOA’s lighting guidelines, which provides,
    among other things, that “[a]s in all other exterior changes, the
    approval of adjacent neighbors must be obtained” before an owner
    may install and use lighting fixtures in common areas. This
    neighbor approval provision of the lighting guidelines seems to be
    a reasonable adaptation of the Declaration’s requirement that one
    owner’s use of a common area not hinder or encroach another
    owner’s use and enjoyment of the common area, because it
    establishes that a legitimate consideration for the HOA to take into
    account in deciding whether to allow a proposed use is how that
    use may affect a neighbor’s use and enjoyment of the common
    area. And requiring a neighbor’s input regarding a proposed use
    is a simple way to explore whether that use may “hinder or
    encroach upon the rights of” a neighbor to use and enjoy the
    common area. Thus, it is not unreasonable for the HOA to employ
    20110801‐CA                      10                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    a lighting guideline that requires “the approval of adjacent
    neighbors” for proposed lighting fixtures that will affect a common
    area of the development, because such an approach is reasonably
    consistent with section 3.05 of the Declaration and is reasonably
    aimed at enforcing its explicit purpose of protecting the rights of all
    unit owners to use and enjoy common areas of the condominium
    development.
    ¶17 We next address the Rapoports’ concern that “[r]equiring
    [the] approval of neighbors . . . is clearly arbitrary since the
    approval of a neighbor is not subject to any standard.” We do not
    disagree with the Rapoports that it is possible that a neighbor’s
    decision to withhold approval may be unreasonable or for an
    improper purpose. But such a concern does not seem to be
    implicated in this case. In rendering its decision, the district court
    found that the HOA “has consistently considered the input of
    neighbors when an owner seeks to obtain [its] prior written consent
    to any additions or alterations to the exterior of” a unit, and that
    “[w]hen weighing the input of neighbors, the [HOA] considers
    whether neighbor complaints are irrational or motivated by an
    improper motive such as spite or retaliation.” And the court further
    found that “[i]n the course of making the[] decisions being
    reviewed . . . in this case, the [HOA] considered whether [the
    Rapoports’ neighbor’s] complaints about the . . . lights were
    irrational or motivated by an improper motive such as spite or
    retaliation and reasonably concluded that they were not.” Based on
    the court’s unchallenged findings in this regard, the HOA has
    consistently interpreted the requirement for neighbor approval to
    mean that such approval cannot be arbitrarily or unreasonably
    withheld. And more importantly, the district court found that the
    HOA actually considered the reasonableness of the neighbor’s
    decision to withhold her approval here. We therefore cannot
    conclude that the HOA’s decision to deny the Rapoports’ request
    20110801‐CA                       11                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    based on the neighbor’s disapproval was unreasonable or
    arbitrary.10
    ¶18 Therefore, because the neighbor approval requirement in the
    lighting guidelines is reasonably derived from section 3.05 of the
    Declaration, and because a reasonableness constraint is imported
    into the neighbor approval requirement to ensure that a neighbor’s
    decision to grant or withhold approval is not arbitrary, we affirm
    the district court’s decision to uphold the HOA’s denial of the
    Rapoports’ request to install and use the aspen spotlights.
    III. The District Court Appropriately Declined to Receive into
    Evidence a Photograph Offered by the Rapoports.
    ¶19 The Rapoports next argue that the district court abused its
    discretion when it sustained the HOA’s objection to a photograph
    they offered into evidence.11 See generally Chen v. Stewart, 
    2005 UT 68
    , ¶ 27, 
    123 P.3d 416
     (“A [district] court has broad discretion to
    admit or exclude evidence and its determination typically will only
    be disturbed if it constitutes an abuse of discretion.” (alteration in
    original) (citation and internal quotation marks omitted)).
    10
    The district court’s findings are supported by testimony
    given at trial that detailed the HOA’s decision‐making process in
    general as well as its particular review of and decision on the
    Rapoports’ request. The district court also heard testimony from
    the neighbor who had objected to the Rapoports’ lighting
    fixtures.
    11
    In their opening brief, the Rapoports argued that the
    district court abused its discretion in declining to admit three
    photographs into evidence: Exhibits 7, 18, and 19. However, in
    their reply brief, the Rapoports abandoned their arguments as to
    Exhibits 18 and 19, so we address only the photograph that was
    offered as Exhibit 7.
    20110801‐CA                      12                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    ¶20 According to the Rapoports, this photograph would have
    shown that, when sitting in her living room, one of their neighbors
    would not have been able to see the light cast on the aspen trees by
    the spotlights because of a “large evergreen to the rear of the
    [neighbor’s] unit.” The HOA objected on the basis that it appeared
    that the photograph, which was taken at night, may have been
    taken with a flash, which would have distorted the actual visual
    effects of the light from the spotlights. The district court sustained
    the objection. The Rapoports do not address the district court’s
    basis for declining to admit the photograph into evidence. As a
    consequence, because the HOA’s objection seems to have raised a
    legitimate concern about the adequacy of the evidentiary
    foundation to support the photograph’s admission, the decision to
    exclude it appears to be well within the district court’s discretion.
    See Utah R. Evid. 901(a) (“To satisfy the requirement of
    authenticating or identifying an item of evidence, the proponent
    must produce evidence sufficient to support a finding that the item
    is what the proponent claims it is.”).
    IV. Attorney Fees
    ¶21 The Rapoports challenge the district court’s decision to
    award the HOA attorney fees under the Declaration on the basis
    that the Declaration’s attorney fees provision does not allow
    attorney fees for defending against a unit owner’s claim but only
    for successfully litigating an affirmative claim.
    ¶22 “[A]ttorney fees are awarded only if authorized by statute
    or contract.” Chase v. Scott, 
    2001 UT App 404
    , ¶ 12, 
    38 P.3d 1001
    (citation and internal quotation marks omitted). “If provided for by
    contract, attorney fees are awarded in accordance with the terms of
    that contract.” 
    Id.
     (citation and internal quotation marks omitted).
    Section 7.05 of the Declaration provides,
    The [HOA] may take judicial action against any
    Owner to enforce compliance with such rules and
    regulations or other obligations of Owners arising
    20110801‐CA                      13                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    hereunder, or to obtain damages for noncompliance
    therewith, as permitted by law. In the event of such
    judicial action, the [HOA] shall be entitled to recover
    its costs, including reasonable attorney[] fees, from
    the offending Owner.
    ¶23 The Rapoports filed a claim for declaratory relief seeking to
    overturn the HOA’s decision to deny the Rapoports’ request to
    install the aspen spotlights. The HOA answered the complaint but
    did not file a counterclaim. According to the Rapoports, by
    providing for an award of attorney fees “[i]n the event of . . .
    judicial action,” the Declaration permits the HOA to recover fees
    only if it affirmatively asserts a claim against an owner and not for
    simply defending itself against an owner’s claim. Similarly, the
    Rapoports assert that the HOA’s opposition to a postjudgment
    motion does not entitle them to an award of attorney fees under the
    Declaration because simply opposing a motion does not constitute
    “judicial action” under the Declaration.
    ¶24 The Declaration limits the award of attorney fees to the
    HOA to circumstances where it “take[s] judicial action against any
    Owner to enforce compliance” with applicable rules, regulations,
    or other obligations. The Rapoports’ interpretation of the phrase
    “judicial action” is too narrow. Rather, we agree with the HOA and
    the district court that the phrase “judicial action” is broad enough
    to encompass both the assertion of and the defense against a claim.
    And further, the judicial action taken here by the HOA in
    defending against the Rapoports’ claim for declaratory relief was
    to “enforce compliance” with its interpretation of the Declaration
    as expressed in its decision to deny the Rapoports’ lighting request.
    See, e.g., id. ¶ 17 (concluding that defending against a suit to rescind
    a contract is an action to enforce the contract, under the contract’s
    attorney fees provision). A successful defense in such
    circumstances falls as readily within the scope of “judicial action”
    to “enforce compliance” with the Declaration as would an
    affirmative claim by the HOA. To conclude otherwise would
    elevate form over substance. Accordingly, we conclude that the
    20110801‐CA                       14                  
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    district court did not err in awarding attorney fees to the HOA both
    for its successful defense against the Rapaports’ attempt to
    overturn the HOA’s decision and the HOA’s successful opposition
    to the Rapaports’ postjudgment motion.
    ¶25 In addition, the HOA requests attorney fees on appeal
    because it was awarded attorney fees below under the Declaration.
    We grant the HOA’s request for an award of reasonable attorney
    fees and remand to the district court for calculation. See generally
    Valcarce v. Fitzgerald, 
    961 P.2d 305
    , 319 (Utah 1998) (“[W]hen a party
    who received attorney fees below prevails on appeal, the party is
    also entitled to fees reasonably incurred on appeal.” (citation and
    internal quotation marks omitted)). In calculating the HOA’s
    attorney fees, however, the district court must take into account the
    fact that the Rapoports were not totally unsuccessful in their
    appeal, as they prevailed in arguing that the district court
    inappropriately decided issues neither raised by the pleadings nor
    tried by the parties’ consent. With this in mind, we also direct the
    district court to reassess its prior awards of attorney fees to the
    HOA to the extent that our decision on this issue makes
    reconsideration of the amount of that award appropriate.
    V. Conclusion
    ¶26 We conclude that the district court decided issues neither
    raised by the pleadings nor tried by the parties’ consent when it
    extended its decision to the other spotlights and tiki lights. Rather,
    the only issue actually pleaded and tried was the HOA’s decision
    regarding the aspen spotlights. Nonetheless, we agree with the
    district court in upholding the HOA’s decision to deny the
    Rapoports’ request to install the aspen spotlights. Further, we
    conclude that the district court was within its discretion in
    sustaining the HOA’s objection to one of the photographs the
    Rapoports offered into evidence. And we also conclude that the
    district court appropriately awarded the HOA attorney fees under
    the Declaration.
    20110801‐CA                      15                 
    2013 UT App 78
    Rapoport v. Four Lake Village Homeowners
    ¶27 Accordingly, we affirm in part and reverse and remand in
    part, as set forth above.
    20110801‐CA                  16                
    2013 UT App 78
                                

Document Info

Docket Number: 20110801-CA

Judges: Roth, Davis, Mehugh

Filed Date: 3/28/2013

Precedential Status: Precedential

Modified Date: 11/13/2024