Park Property v. G6 Hospitality ( 2022 )

2022 UT App 75THE UTAH COURT OF APPEALS
PARK PROPERTY MANAGEMENT LLC, AND JOSEPH PARK,
Appellants,
v.
G6 HOSPITALITY FRANCHISING LLC,
JACKIE NELON, AND DON FINLEY,
Appellees.
Opinion
No. 20210013-CA
Filed June 16, 2022
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 180401843
Steven R. Sumsion and Cameron Steven Christensen,
Attorneys for Appellants
Mark A. Nickel and Zachary A. Bloomer,
Attorneys for Appellees
JUSTICE DIANA HAGEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.1
HAGEN, Justice:
¶1 Park Property Management, LLC and Joseph Park
(collectively, Park Property) appeal the district court’s
enforcement of a settlement agreement and dismissal of all claims
with prejudice. Park Property argues that the parties never agreed
to the material terms of the settlement agreement and that the
1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
Park Property v. G6 Hospitality
draft of the settlement agreement enforced by the district court
included language that “expressly contravened the language of
counsel’s settlement discussions.” We agree with the district court
that the material terms of the contract were agreed upon by each
party and therefore constituted an enforceable agreement that
was later memorialized in writing. We affirm.
BACKGROUND
¶2 Park Property Management LLC filed a lawsuit against G6
Hospitality Franchising LLC, Jackie Nelon, and Don Finely
(collectively, G6 Hospitality), alleging claims arising out of a
terminated franchise agreement, including a claim that the
franchise agreement was void and should be rescinded. G6
Hospitality filed a counterclaim against Park Property
Management, LLC, as well as a separate claim against one of its
principals, Joseph Park, alleging conduct that violated the
franchise agreement.
¶3 On November 20, 2019, after the parties attempted to
mediate their dispute, G6 Hospitality offered Park Property a
“walk-away” settlement that would require the parties to release
all claims and pay their own fees and costs. Counsel for Park
Property orally agreed to the offer and memorialized the
agreement in an email to G6 Hospitality’s counsel. That email
stated:
This communication confirms our conversation
today in which I conveyed my clients[’] acceptance
of G6’s offer to settle by each party “walking-
[a]way”. We have agreed to settle by each party
agreeing to release the other for all claims that were
or could have been asserted and each paying its own
attorneys fees and costs. The parties shall stipulate
to dismiss all claims under Rule 41 URCP with each
party paying its own fees and costs. You have
agreed to draft a proposed settlement agreement
20210013-CA 2 2022 UT App 75Park Property v. G6 Hospitality
and motion to dismiss. Thank you for working with
us to resolve these matters.
We will refer to the oral acceptance and the foregoing email
collectively as the November 20 acceptance.
¶4 G6 Hospitality sent a confirmation email, stating: “This
[email] will confirm that your client accepted my client’s
walkaway offer. As we agreed, my firm will prepare a settlement
agreement containing a broad general release, dismissal with
prejudice with each party bearing their own fees and costs, and
other standard and customary terms found in a settlement of this
kind.”
¶5 G6 Hospitality prepared a draft of the settlement
agreement for Park Property’s review. Paragraph four of the draft
stated that the indemnification, insurance, post-termination, and
confidentiality provisions of the franchise agreement “shall
continue in full force and effect.” Counsel for Park Property
objected to paragraph four, stating, “My clients will not be bound
by any provisions of the franchise agreement, including without
limitation, [the] indemnification provision.”
¶6 Counsel for G6 Hospitality responded that the parties’
agreement to dismiss all claims—including those challenging the
validity or enforceability of the franchise agreement—necessarily
left the franchise agreement intact; in other words, the parties
were “back to where they were before the lawsuits were filed, i.e.,
the franchise agreement was terminated and [Park Property] still
owes [G6 Hospitality] the obligations under the franchise
agreement as a terminated franchisee.” The parties ultimately
agreed that the ongoing validity of the franchise agreement was
not affected by the settlement agreement because the mutual
decision to walk away from all claims meant the franchise
agreement remained in place. Nevertheless, “in the spirit of
compromise,” counsel for G6 Hospitality offered to remove the
20210013-CA 3 2022 UT App 75Park Property v. G6 Hospitality
references to the post-termination and confidentiality provisions
if Park Property “confirm[ed] their indemnity obligations.”2
¶7 On December 9, Park Property’s counsel responded, “My
client will sign the Settlement Agreement with the
indemnification provision,” if G6 Hospitality removed the names
of individuals who were not parties to the lawsuit, including
Joseph Park’s father. Counsel continued, “Once I get the revised
Agreement, I will have my clients sign and we can then file the
joint Motion to Dismiss with Prejudice.”
¶8 On January 26, 2020, G6 Hospitality sent a final version of
the settlement agreement (the January 26 document) to Park
Property; the document included the indemnification, insurance,
post-termination, and confidentiality provisions, even though G6
Hospitality had agreed on December 9 to remove the post-
termination and confidentiality provisions. Park Property refused
to sign the agreement and offered no explanation for its refusal.
In April 2020, Park Property retained new counsel, who requested
that the parties set aside the settlement and allow Park Property
to file a motion for summary judgment. G6 Hospitality rejected
that request and asked for assurance that the settlement would be
honored. Rather than respond, Park Property filed a motion for
partial summary judgment.
¶9 G6 Hospitality filed a motion to enforce the settlement and
dismiss all claims with prejudice.3 G6 Hospitality argued that the
2. The compromise offered by G6 Hospitality made no mention of
the insurance provision, and that provision was ultimately
included in the written settlement agreement signed by the
parties. On appeal, Park Property has not challenged the inclusion
of the insurance provision.
3. G6 Hospitality also moved to stay Park Property’s motion for
partial summary judgment on the basis that the court’s ruling on
the motion to enforce could render Park Property’s motion moot.
(continued…)
20210013-CA 4 2022 UT App 75Park Property v. G6 Hospitality
parties had entered into a binding agreement on November 20,
2019, and that the January 26 document included the material
terms of the agreement—namely, that the parties agreed to walk
away from each of their respective claims and to pay their own
attorney fees and costs.
¶10 Park Property opposed the motion, essentially arguing that
the November 20 acceptance amounted to an agreement to enter
into a “future settlement agreement” and therefore was not
enforceable. Park Property asserted, without evidentiary support,
that the parties “disagree[d] over important elements of a
settlement, including whether post-termination, indemnification,
and confidentiality terms should be included; whether the
Franchise Agreement should continue in force; and whether
[Joseph Park’s father] should have to sign and how much
compensation he would be paid.” Park Property did not assert
that G6 Hospitality had agreed to remove the post-termination
and confidentiality provisions from their written settlement
agreement, nor did it include the email in which G6 Hospitality
offered to remove those provisions.
¶11 In reply, G6 Hospitality argued that the parties reached an
agreement on December 9 that the provisions in the franchise
agreement remained in effect. G6 Hospitality attached a
declaration of its counsel, which described the conversation its
counsel had with Park Property’s counsel, as well as the email in
which Park Property agreed to include the indemnification
provision. Park Property did not offer any evidence to refute the
declaration or the email.
¶12 After hearing argument on the motion to enforce, the
district court granted the motion, enforced the settlement, and
dismissed all claims with prejudice. The court determined that the
November 20 acceptance represented “a binding and enforceable
settlement agreement” because “the language [was] clear and
The district court agreed and stayed briefing on the summary
judgment motion.
20210013-CA 5 2022 UT App 75Park Property v. G6 Hospitality
definite as to all integral terms that the parties intended to and did
agree to,” namely, the “walk-away” agreement and the
agreement that each party pay its own attorney fees and costs. The
court also determined that the agreement “did not require a
formal written and signed agreement for [the terms] to be binding
and enforceable—even though the parties clearly intended to do
so.” In addition, “any concerns about the viability of the subject
franchise agreement” did not affect the binding nature of the
settlement agreement because “those concerns were clearly
resolved” by December 9, 2019, when each party “agreed that the
subject franchise agreement remained valid and enforceable.”
¶13 After the district court announced its ruling that the
settlement agreement was enforceable, G6 Hospitality requested
that the court order the parties to sign the January 26 document.
Park Property objected, arguing that requiring the parties to sign
the draft would be “highly inappropriate” because, based on the
ruling, “the email[] is enforceable as the settlement agreement
itself and that is the governing document, not proposed terms that
went on in negotiation for month after month.” The court
disagreed with Park Property and ordered the parties to sign the
settlement agreement “as it existed at the time of the December
9th and December 11th conversations” between counsel. In its
written ruling, the court specifically ordered the parties to sign the
January 26 document.
¶14 Following this ruling, G6 Hospitality moved for attorney
fees and costs related to the motion to enforce, arguing that the
written agreement that the court had ordered the parties to sign
allowed the prevailing party “in any lawsuit or other dispute
arising out of or in connection with the enforcement of this
[agreement] . . . to recover their costs and reasonable attorneys’ fees
from the non-prevailing” party. (Emphasis added.) In opposition,
Park Property argued that “the fees were not reasonably
necessary as G6 [Hospitality] refused to comply with its own
obligations to remove the confidentiality and post-termination
provisions from the Formal Settlement Agreement” and that they
were incurred in connection with executing rather than enforcing
20210013-CA 6 2022 UT App 75Park Property v. G6 Hospitality
the settlement agreement. Park Property also argued that the
January 26 document included provisions that were not agreed
upon and, for the first time, provided the emails containing G6
Hospitality’s offer to remove the enforcement of the franchise
agreement’s post-termination and confidentiality provisions if
Park Property agreed to include the indemnification provision.
¶15 The district court awarded G6 Hospitality the attorney fees
and costs it incurred in enforcing the settlement agreement. In that
order, the court determined that some of Park Property’s
arguments against the motion for attorney fees “constitute[d] an
invitation for the Court to reconsider” its prior ruling on the
motion to enforce. The district court declined to reconsider that
prior ruling.
ISSUES AND STANDARDS OF REVIEW
¶16 Park Property now appeals and argues that the district
court committed two errors in enforcing the settlement
agreement. First, Park Property argues that the court should not
have concluded that the November 20 acceptance was enforceable
because there was “a lack of meeting of the minds, lack of
agreement on substantial issues, and references to a future
agreement.” Second, and relatedly, Park Property argues that the
court erred in concluding that the January 26 document was
binding and enforceable because it “expressly contravened
language of counsel’s settlement discussions.”
¶17 “In general, a trial court’s enforcement of a settlement
agreement will not be reversed on appeal unless it is shown that
there was an abuse of discretion.” Lebrecht v. Deep Blue Pools
& Spas Inc., 2016 UT App 110, ¶ 10, 374 P.3d 1064 (cleaned up).
But because settlement agreements are governed by contract
principles, “the underlying issue of whether a contract exists may
present both questions of law and fact, depending on the nature
of the claims raised.” LD III, LLC v. BBRD, LC, 2009 UT App 301,
¶ 13, 221 P.3d 867 (cleaned up). “Questions of contract
20210013-CA 7 2022 UT App 75Park Property v. G6 Hospitality
interpretation not requiring resort to extrinsic evidence are
matters of law, and on such questions we accord the trial court’s
interpretation no presumption of correctness.” Sackler v. Savin, 897
P.2d 1217, 1220 (Utah 1995) (cleaned up). In contrast, “whether the
parties had a meeting of the minds sufficient to create a binding
contract is an issue of fact, which we review for clear error,
reversing only where the finding is against the clear weight of the
evidence, or if we otherwise reach a firm conviction that a mistake
has been made.” Patterson v. Knight, 2017 UT App 22, ¶ 5, 391 P.3d
1075 (cleaned up).
¶18 Some cases have suggested that a non-deferential standard
of review applies—even to questions of fact—where the district
court’s decision to enforce a settlement agreement rests solely on
documentary evidence. In Sackler, for example, our supreme court
reviewed the enforcement of a settlement agreement for
correctness because “the trial court based its decision solely on the
documents constituting the correspondence between the parties”
and “took no extrinsic evidence.” 897 P.2d at 1220. Similarly, in
Lebrecht, this court afforded no deference to the district court’s
determination that a settlement was reached because the decision
was based on a transcript of the negotiation and list of terms
compiled by the parties. 2016 UT App 110, ¶ 10. This court
reasoned that an appellate court was “in as good a position as the
[district] court to examine” the documentary evidence in
determining whether a settlement was reached. Id. (citing State v.
Arriaga-Luna, 2013 UT 56, ¶ 8, 311 P.3d 1028 (stating that “because
we are in as good a position as the [district] court to examine the
transcript” and determine what the law is, “we owe the [district]
court no deference”)).
¶19 Here, the district court’s decision was based on the email
correspondence between the parties’ attorneys and the
uncontested declaration of G6 Hospitality’s counsel. Arguably,
we are in as good a position as the district court to determine
whether a binding settlement agreement was reached based on
that documentary evidence. But to the extent the district court
could draw competing inferences from that evidence, we may
20210013-CA 8 2022 UT App 75Park Property v. G6 Hospitality
owe deference to the inferences the district court drew.
Ultimately, however, we need not definitively resolve the
uncertainty in the caselaw regarding the proper standard of
review because, in this case, the outcome is the same no matter
which standard of review we apply. For the reasons discussed
below, even reviewing the district court’s decision for correctness,
we conclude that the parties had a meeting of the minds as to the
essential terms of the settlement agreement.
ANALYSIS
I. The Parties Entered into a Binding Settlement Agreement on
November 20, 2019.
¶20 Park Property contends that there was no meeting of the
minds as to the material terms of the settlement agreement and
that the November 20 “email correspondence did not (and cannot)
constitute a binding contract because both Parties manifested [a]
clear intention to defer legal obligations until an agreement was
put into writing, reviewed[,] and accepted.” We disagree.
¶21 “Settlement agreements are governed by the rules applied
to general contract actions.” Patterson v. Knight, 2017 UT App 22,
¶ 6, 391 P.3d 1075 (cleaned up). “A binding contract exists where
it can be shown that the parties had a meeting of the minds as to
the integral features of the agreement and that the terms are
sufficiently definite as to be capable of being enforced.” ACC Cap.
Corp. v. Ace West Foam Inc., 2018 UT App 36, ¶ 12, 420 P.3d 44(cleaned up). “A contract may be enforced even though some
contract terms may be missing or left open to be agreed upon,” so
long as “the essential terms are [not] so uncertain” that there
would be “no basis for deciding whether the agreement ha[d]
been kept or broken.” See Patterson, 2017 UT App 22, ¶ 6 (cleaned
up).
¶22 Here, G6 Hospitality extended a “walk-away” offer to Park
Property. Park Property’s counsel called G6 Hospitality’s counsel
20210013-CA 9 2022 UT App 75Park Property v. G6 Hospitality
to accept that offer, and each party’s counsel memorialized that
phone call in an email, stating that both parties had agreed to the
“walk-away” offer and to dismiss all claims with prejudice. The
material terms of the settlement were set forth in Park Property’s
own November 20 email: “We have agreed to settle by each party
agreeing to release the other for all claims that were or could have
been asserted and each paying its own attorneys fees and costs.”
These terms constitute the integral features of the settlement
agreement and are sufficiently definite as to be capable of being
enforced.
¶23 In arguing that the November 20 acceptance does not
constitute a binding agreement, Park Property relies on evidence
that the parties contemplated a more formal written settlement
agreement. Specifically, G6 Hospitality’s email on November 20
stated, “As we agreed, my firm will prepare the settlement
agreement containing a broad general release, dismissal with
prejudice with each party bearing their own fees and costs, and
other standard and customary terms found in a settlement of this
kind.”
¶24 The mere fact that the parties “contemplated future
preparation of more formal settlement documents does not
undercut the district court’s conclusion that the [November 20]
agreement was enforceable.” See ACC Cap. Corp., 2018 UT App 36,
¶ 22. Indeed, it is well established that settling parties’
contemplation of “subsequent execution of a written instrument
as evidence of their agreement d[oes] not prevent [an] oral
agreement from binding the parties.” Lawrence Constr. Co. v.
Holmquist, 642 P.2d 382, 384 (Utah 1982); see also id. (“If a written
agreement is intended to memorialize an oral contract, a
subsequent failure to execute the written document does not
nullify the oral contract.”).
¶25 But Park Property argues that the parties did not merely
contemplate memorializing their oral agreement in writing;
rather, it contends that the parties “clearly manifest[ed] the
intention to defer legal obligations until [a] writing [was] made.”
20210013-CA 10 2022 UT App 75Park Property v. G6 Hospitality
In making this argument, Park Property relies on Lebrecht v. Deep
Blue Pools & Spas Inc., 2016 UT App 110, 374 P.3d 1064, and Sackler
v. Savin, 897 P.2d 1217 (Utah 1995). Both cases are readily
distinguishable from the present case.
¶26 In Lebrecht, the parties met individually, without counsel
present, to negotiate a potential settlement agreement. 2016 UT
App 110, ¶ 3. During the negotiations, the parties wrote down
certain figures, payment schedules, and interest rates on a “Term
Sheet,” which the parties initialed or signed. Id. The Term Sheet
consisted of “bullet-point terms and phrases” that “lack[ed]
specific identifying information, including for which party each
term applie[d].” Id. ¶ 15. An audio recording of the meeting
revealed that “each time the parties appeared to agree on a term,
they continued to negotiate other terms or conditions, sometimes
revisiting terms previously decided.” Id. ¶ 17. And the parties
expressly deferred agreement on certain terms, such as a “mutual
confidentiality clause” for which the plaintiff suggested, “We’ll
just see what that looks like in writing.” Id. ¶ 20 (cleaned up).
Additionally, the defendant stated “on several occasions that he
wanted to discuss the negotiated terms with his lawyer before
signing an agreement,” and the plaintiff assured him that the
Term Sheet was not binding. Id. ¶ 19.
¶27 On those facts, this court reversed the district court’s
conclusion that the negotiations memorialized in the Term Sheet
constituted a binding agreement. Id. ¶ 15. This court concluded
that “the parties may have agreed on some of the essential terms
of their settlement,” but they also “agreed to defer certain terms,
such as a confidentiality clause, until an agreement was drafted.”
Id. ¶ 23. “At no point did either party definitely agree their dispute
was settled; rather, they made clear their intention to enter into a
written settlement agreement in the future.” Id. Therefore, this
court concluded that “the parties did not merely intend to
memorialize an oral contract but planned to defer their legal
obligations until the settlement was drafted.” Id.
20210013-CA 11 2022 UT App 75Park Property v. G6 Hospitality
¶28 And in Sackler, the parties entered into an “oral partnership
agreement . . . for the purpose of acquiring a condominium unit”
at a ski resort. 897 P.2d at 1218. At some point, “Savin began
personally occupying the unit on occasion, and a dispute arose
over how much Savin should pay for his personal use.” Id. Savin’s
counsel sent a letter to Sackler with a “proposal” that “expressly
stated that ‘should the general terms of this letter be acceptable,’
then the parties could ‘proceed to a formal agreement.’” Id.
Sackler’s counsel responded and accepted part of the proposal,
but also proposed additional terms. Id. The parties then went back
and forth with additional terms and monetary figures regarding
the personal use of the property and whether Sackler would
personally retain the payments for Savin’s use or whether those
payments would go to the partnership. Id. at 1218–20 (cleaned
up). There were also discussions and proposals regarding the sale
of the unit and the effect of applying certain amounts of the sale
to pay for Savin’s use of the unit. Id. at 1219–20. Eventually, while
the parties were still in dispute about the terms of a settlement
agreement, Sackler sued Savin for “breach of contract, forgery and
conversion, injunctive relief, and an accounting.” Id. at 1220
(cleaned up). Sackler then moved to enforce the settlement
agreement, which the court denied, ruling that “no settlement
agreement had been reached.” Id.
¶29 On appeal, the Utah Supreme Court affirmed the district
court’s denial. The court determined that the original settlement
offer “contemplated that the parties would not enter an
agreement until sometime in the future” because it “provided that
if the terms of the letter were acceptable, then the parties could
‘proceed to a formal agreement.’” Id. at 1221 (emphases added). In
response, Sackler had provided “counterproposals” and asked
Savin to “please call” if those counterproposals were “acceptable”
so that the attorney could “prepare an agreement.” Id. The court
determined that, based on these communications, “the parties had
not come to an agreement on the essential terms of the contract.”
Id. at 1221–22.
20210013-CA 12 2022 UT App 75Park Property v. G6 Hospitality
¶30 In contrast to both Lebrecht and Sackler, the parties here
definitively agreed to walk away from all claims, dismissing those
claims with prejudice and paying their respective costs and fees.
Those terms were unambiguous and plainly applied to both
parties. And neither party made any counterproposal at the time
of the November 20 acceptance. Instead, they unconditionally
stated that they had “agreed to settle by each party agreeing to
release the other for all claims that were or could have been
asserted and each paying its own attorneys fees and costs.”
Although they expressed an understanding that their agreement
would be memorialized in a written settlement agreement, there
was no suggestion that the parties’ agreement to settle was
contingent on any future events.
¶31 Despite the unqualified November 20 acceptance, Park
Property contends that the agreement could not be enforced
because a later dispute arose regarding additional terms of the
written agreement—namely, whether non-parties to the lawsuit
could be considered released parties under the settlement
agreement, whether the underlying franchise agreement was
affected by the settlement agreement, or whether an
indemnification provision should be included. Park Property
claims the ongoing discussions demonstrate that there was no
meeting of the minds on material terms necessary to the
settlement agreement. Even if the additional terms were material
to the walk-away settlement agreement reached on November 20,
the declaration of G6 Hospitality’s counsel reflected a meeting of
the minds on those additional terms no later than December 9. In
other words, by December 9, the parties had agreed not only to
the terms of the November 20 acceptance, but also to those
additional terms that Park Property claims were material to the
settlement agreement. As explained below, at the time of the
court’s ruling, the declaration of G6 Hospitality’s counsel stood
unrebutted. Based on that undisputed evidence, the district court
correctly concluded that the parties had a meeting of the minds
on all material terms of the settlement agreement no later than
December 9 and that those terms were sufficiently definite to be
enforced.
20210013-CA 13 2022 UT App 75Park Property v. G6 Hospitality
II. The January 26 Document Reflected the Terms of the
Settlement.
¶32 Park Property also argues that the district court
erroneously determined that, as of December 9, 2019, the parties
had agreed to the form of the January 26 document.4 Again, we
disagree.
¶33 Although the district court found that the parties entered
into an enforceable settlement agreement on November 20, it
nevertheless ordered the parties to sign the January 26 document
because it found that it accurately represented the parties’
agreement. Park Property argues that this was error because the
January 26 document contained provisions regarding the
franchise agreement’s post-termination and confidentiality
clauses that the parties had agreed to remove. As evidence, Park
Property points to G6 Hospitality’s email offering to remove those
provisions from the settlement agreement in exchange for Park
Property’s agreement to retain the indemnification language.
4. G6 Hospitality argues that this court lacks jurisdiction to hear
this issue because it arises from the district court’s June 5 ruling
on the motion to enforce and the notice of appeal referenced only
the December 1 ruling on the motion for attorney fees. G6
Hospitality is mistaken. In its notice of appeal, Park Property
stated that it appealed from “the entire judgment, which was
entered on December 1, 2020.” Having referenced “the entire
judgment” in its notice of appeal, Park Property necessarily
included the interlocutory orders that were a step toward that
final judgment, including the June 5 order. See Butler v. Corporation
of President of Church of Jesus Christ of Latter-day Saints, 2014 UT 41,
¶ 24 n.6, 337 P.3d 280 (explaining that under the merger of
judgments doctrine, “once final judgment is entered, all preceding
interlocutory rulings that were steps towards final judgment
merge into the final judgment and become appealable at that
time” (cleaned up)).
20210013-CA 14 2022 UT App 75Park Property v. G6 Hospitality
¶34 G6 Hospitality argues that this issue was not preserved
below. “An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity to rule on it.” Patterson v. Patterson, 2011 UT 68, ¶ 12,
266 P.3d 828 (cleaned up). “To provide the court with this
opportunity, the issue must be specifically raised by the party
asserting error, in a timely manner, and must be supported by
evidence and relevant legal authority.” State v. Johnson, 2017 UT
76, ¶ 15, 416 P.3d 443 (cleaned up). “When a party fails to raise
and argue an issue in the trial court, it has failed to preserve the
issue, and an appellate court will not typically reach that issue
absent a valid exception to preservation.” Id.¶35 Although Park Property timely objected to signing the
January 26 document at the hearing on the motion to enforce, the
reason it gave had nothing to do with the inclusion of the post-
termination and confidentiality provisions. Instead, it argued that
because the court had found that an enforceable settlement
agreement had been reached no later than December 9, there was
no need for an additional signed document to enforce those terms,
especially when the document included “proposed terms that
went on in negotiation for month after month.” Park Property
never asked the court to strike the post-termination and
confidentiality provisions.5
¶36 It was not until its opposition to G6 Hospitality’s motion
for attorney fees that Park Property presented evidence of
conflicting terms between the January 26 document and the
parties’ earlier discussions. In its written ruling, the district court
5. Park Property argued only that the parties “just simply did not
have a meeting of the minds on the . . . relevant terms.” As
examples, it noted that “the franchise agreement actually became
a very significant debate between the parties with indemnity
provisions, with post-termination requirements with the addition
of these other parties.”
20210013-CA 15 2022 UT App 75Park Property v. G6 Hospitality
characterized Park Property’s argument as a motion to reconsider
and declined to reconsider its prior ruling.
¶37 The denial of a motion to reconsider is reviewed for abuse
of discretion. See State v. Ruiz, 2012 UT 29, ¶ 23, 282 P.3d 998(explaining that “it is within the sound discretion of a trial court
judge to grant a motion to reconsider” and that appellate courts
“will not disturb a district court’s decision to grant or deny such
motion absent an abuse of discretion”). But on appeal, Park
Property has not argued that the district court abused its
discretion in declining to reconsider its prior ruling. Instead, Park
Property merely challenges the original ruling that required it to
sign the January 26 document. At the time of its original ruling,
however, the district court had no evidence that the January 26
document conflicted with the terms to which the parties had
agreed. Therefore, we affirm the district court’s order directing
the parties to sign the January 26 document based on the record
before the court at the time of its ruling.
III. G6 Hospitality Is Entitled to Attorney Fees.
¶38 G6 Hospitality has requested its attorney fees on appeal.
“When a party who received attorney fees below prevails on
appeal, the party is also entitled to fees reasonably incurred on
appeal.” Mardesich v. Sun Hill Homes LC, 2017 UT App 33, ¶ 21,
392 P.3d 950 (cleaned up). Park Property has not challenged the
award of attorney fees to G6 Hospitality below and has not
argued against such an award for fees incurred on appeal.
Accordingly, we remand to the district court to calculate an award
of attorney fees reasonably incurred by G6 Hospitality on appeal.6
6. In Park Property’s opening brief, it requests that we “reverse
the trial court’s June 5, 2020 and December 1, 2020 orders and
remand for further proceedings.” To the extent Park Property
challenges the award of attorney fees from the December 1, 2020
order, Park Property has not provided any argument to show that
(continued…)
20210013-CA 16 2022 UT App 75Park Property v. G6 Hospitality
CONCLUSION
¶39 Park Property has not shown that the district court erred in
enforcing the settlement agreement. The record supports the
district court’s determination that the November 20 acceptance
constituted a meeting of the minds as to the material terms of the
settlement agreement. Park Property did not raise a timely
objection asserting that the January 26 document contained
provisions that the parties had agreed to omit, and it has not
argued on appeal that the district court abused its discretion when
it later declined to reconsider its ruling ordering the parties to sign
that document. Accordingly, we affirm the district court’s order
enforcing the settlement agreement and ordering the parties to
sign the January 26 document, and we remand to the district court
to award G6 Hospitality the attorney fees it reasonably incurred
on appeal.
fees were improperly awarded to G6 Hospitality and has not
carried its burden of persuasion on appeal. See Bank of Am. v.
Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196; see also Utah R. App. P.
24(a)(8).
20210013-CA 17 2022 UT App 75