KB Squared LLC v. Mem'l Bldg. LLC

2019 UT App 61THE UTAH COURT OF APPEALS
KB SQUARED LLC,
Appellant,
v.
MEMORIAL BUILDING LLC,
Appellee.
Opinion
No. 20170807-CA
Filed April 18, 2019
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 130905407
James L. Barnett, Darren G. Reid, and Steven M. Lau,
Attorneys for Appellant
James K. Tracy, Joshua L. Lee, and James C.
Dunkelberger, Attorneys for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred.
APPLEBY, Judge:
¶1 KB Squared LLC dba Park City Live (PCL), entered into a
lease agreement (the Lease) with Memorial Building LLC
(Memorial) to operate a nightclub (the Club) including
presenting concerts in a building owned by Memorial in Park
City, Utah. PCL used an upper-level “bridge” (the Bridge) for
high capacity premium concert seating. Out of occupancy and
safety concerns Park City ordered PCL to stop using the Bridge
in that way. PCL sued Memorial for a breach of the Lease,
arguing that its inability to use the Bridge was caused by
Memorial’s failure to repair it. After a bench trial, the district
court ruled Memorial did not breach the Lease. We affirm.
KB Squared v. Memorial Bldg.
BACKGROUND
¶2 In December 2011, Memorial entered into the Lease with
PCL to occupy the Club “for the purpose of [operating a]
nightclub, entertainment, and other event use.” Before PCL
occupied the Club, a prior tenant (Prior Tenant) operated in the
space. In 2005, Prior Tenant had the Bridge built inside the Club.
The Bridge was intended to connect “the right and left side
mezzanine levels of [the Club].” Engineers prepared
construction drawings that “reflect[ed] that the Bridge was
approximately 42 feet wide and would accommodate a seating
area” that could hold “21 people total.” The plans showed a
standing area behind the seating area, which, the experts at trial
calculated, could “accommodate an additional 38 people, for a
total occupancy of 59 on the Bridge.” “The plans also contained
an express occupancy limit of 50 for the Bridge addition for
egress purposes.” Based on the testimony presented at trial the
district court ruled that “it was reasonable, based upon the
intended use of the Bridge, that it was designed to hold between
50 and 60 people for the stated and intended use—i.e., fixed
seating and standing for a restaurant or nightclub.”
¶3 The district court found the testimony regarding Prior
Tenant’s use of the Bridge after it was constructed “somewhat
unspecific about the precise number of people that [Prior
Tenant] housed on the Bridge.” But the court concluded “[Prior
Tenant] used the Bridge in a manner that appears to have
exceeded the stated limit set forth in the plans.” At one point,
Prior Tenant also used the Bridge “to accommodate [concert]
equipment.”
¶4 The Lease did not contain “any representation or
guaranty concerning the occupancy of the [Club], or any part
thereof” nor “any representation or guaranty concerning the
manner of use of any particular part of the [Club].” But the Lease
generally provided that the Club as a whole was to be used as a
nightclub. Prior to entering into the Lease, PCL did not
20170807-CA 2 2019 UT App 61KB Squared v. Memorial Bldg.
investigate the purpose for which the Bridge was designed. PCL
intended to use the Bridge for “premium event seating” in the
same way it believed Prior Tenant used it.
¶5 In January 2013, Park City officials “observed 85 to
100 people . . . dancing and jumping” on the Bridge and
observed “excessive deflection of the floor.” Because of this, the
officials requested that PCL “limit[] the occupancy of the Bridge
to 35.” “They came back the following night and again observed
80–85 people on the Bridge.” After PCL failed to follow the
officials’ directives, the officials “believed PCL could not control
the occupancy load, [and] issued [a] ‘Stop Work’ 1 order
prohibiting any occupancy on the Bridge until otherwise
approved.”
¶6 PCL contacted the engineers involved in the construction
of the Bridge and had them inspect it. The engineers concluded
the Bridge was structurally sound. Their report stated that “[t]he
original intent of [the Bridge] was to serve as an access platform
to mount lighting and sound equipment. In the construction
documents, the drawings indicate a value of 50 persons
(attributed to [the Bridge] area) used to calculate the means of
egress width.” The report also noted, “Recently, it has become
apparent that the usage of [the Bridge] (under new ownership)
has been changed to an assembly area without fixed seats.” The
engineers recommended that to “prevent excessive
deflection/vibration of [the Bridge] under the new usage, . . . the
maximum occupant load of [the Bridge should be reduced] to 25
persons.” But the engineers also believed “the structural
integrity of [the Bridge] system [was] not compromised” and
was still fit for its intended purpose.
1. Although no work was under way on the Bridge, in a
deposition, one of the officials described a “stop work” order as
“basically a . . . do-not-enter, unsafe-to-occupy notice.”
20170807-CA 3 2019 UT App 61KB Squared v. Memorial Bldg.
¶7 PCL asked Memorial to “restore the seating area to its
former and promised use as premium event seating as required
by the Lease.” Memorial refused, noting that the city officials’
directives resulted from PCL’s misuse of the Bridge, not from its
condition, and that the Bridge was structurally sound and
undamaged.
¶8 PCL sued Memorial, alleging that it breached the Lease.
The claims arose “out of [an] alleged representation that
Memorial made in the Lease” that the Bridge was intended to be
used as premium event seating. PCL asserted Memorial
breached the Lease by failing “to make the structural repairs
necessary to enable PCL to use [the Bridge] accordingly.”
¶9 After a bench trial, the district court dismissed PCL’s
claim. It first noted that “PCL [did] not argue that the
representation included a specific number of seats, or a specific
occupancy number. Instead, it [asked] the Court to conclude that
50 would be a ‘reasonable’ occupancy number.” “[I]t is
undisputed that the Lease did not contain any express promise
concerning the number of permissible occupants on the Bridge,
or any specific use of the Bridge.”
¶10 At trial, the principal of PCL (PCL Principal) testified that
Memorial made no oral representations or guarantees to PCL
regarding how the Bridge was to be used. PCL Principal
“believed there was an implicit promise that [PCL] would be
able to use the Bridge for nightclub [premium event] seating,
which, according to [PCL’s] understanding of nightclub industry
usage, connotes dancing and jumping.” PCL argued Prior
Tenant’s use of the Bridge should allow PCL to similarly use it
because Memorial’s Principal (Memorial Principal) was involved
in the business when Prior Tenant was using the Bridge and was
aware of PCL’s intent to use the Bridge in the same manner.
¶11 In PCL’s view, the notation “seating area” on the diagram
of the Bridge attached to the Lease constituted an implicit
20170807-CA 4 2019 UT App 61KB Squared v. Memorial Bldg.
representation. PCL “argue[d] that because the purpose of the
Lease was for [it] to operate a ‘nightclub,’ that ‘seating area’
actually meant ‘premium event seating’ which, in the context of
a nightclub, essentially means jumping and dancing.”
¶12 The court found that PCL’s “claim [was] at least
‘tenable’ . . . [so it] could not interpret the Lease on its face, and
had to resort to extrinsic evidence.” Accordingly, the court
considered the diagram and its reference to “seating area” on the
Bridge. The court heard testimony about the diagram and
ultimately found that it depicted square footage and was not
“intend[ed] to represent or guarantee” an occupancy limit on the
Bridge. The court also considered the parties’ testimony and
found that it was “a stretch—to say the least—that the use of the
word ‘seating’ (taken from a construction document) was
understood by everyone to mean a guarantee that the area could
be used for dancing and jumping.” The court ruled “the facts
simply do not preponderate in PCL’s favor on . . . its assertions
regarding the language of the Lease.”
¶13 Specifically, the court noted it was unreasonable for PCL
Principal to believe PCL was guaranteed a specific use for the
Bridge because, (1) PCL’s belief was “based on a strained
interpretation of the Lease, and an improper attribution to the
attached square footage diagram”; (2) PCL Principal’s
“understanding of [Prior Tenant’s] prior use of the Bridge is not
legally relevant”; (3) PCL Principal’s “subjective understanding
is belied by the lack of any representation from [Memorial
Principal]”; (4) “there are provisions in the Lease noting that any
prior representations or any representation—if they had been
made—could not form the basis of an enforceable promise”; and
(5) “nothing in the Lease, or the extrinsic evidence relating
thereto, defines ‘seating’ in the manner [PCL Principal]
apparently understood it.”
¶14 The district court ruled that “because PCL is able to use
[the Bridge] for the furtherance of its nightclub operation, and
20170807-CA 5 2019 UT App 61KB Squared v. Memorial Bldg.
because there [was] no representation or guarantee of a specific
use or occupancy, there is no breach of the terms of the Lease.”
The court also noted that by misusing the Bridge, PCL caused its
own loss. The evidence showed the Bridge was in the same
condition as when the Lease was signed and it appeared PCL
was requesting that Memorial “upgrade [the Bridge], not repair
it.” Further, “the reason [the Bridge] cannot be used” in the way
PCL requested was “based on the fact that Park City” closed it.
The closure “was not based on anything Memorial did in
violation of its obligations under the Lease.”
¶15 The court also awarded Memorial attorney fees under the
terms of the Lease, which stated that for any “dispute regarding
the terms of the Lease” the “non-prevailing party agrees to
reimburse the prevailing party for all expenses and costs,
including reasonable attorney fees incurred.” The court noted
that the fee award “[would] not include the fees and costs
incurred by Memorial that did not materially advance its case.”
It invited Memorial to file a motion and supporting
memorandum detailing its request for attorney fees and costs
and gave PCL an opportunity to respond. Ultimately the court
awarded Memorial approximately half of its total requested fees.
¶16 PCL appeals, arguing that the court was incorrect in
interpreting the Lease and also erred in awarding Memorial
attorney fees when Memorial failed to “categorize fees as
mandated by Utah law.”
ISSUES AND STANDARDS OF REVIEW
¶17 PCL raises two issues on appeal, the first of which relates
to the Lease. PCL argues the district court erred in finding the
Lease ambiguous. Further, it contends the court erred in failing
to consider all relevant extrinsic evidence to determine the
parties’ intent under the Lease and in interpreting the Lease to
find PCL was not guaranteed a specific occupancy and use of the
20170807-CA 6 2019 UT App 61KB Squared v. Memorial Bldg.
Bridge. “The interpretation of a contract is a question of law,
which we review for correctness, giving no deference to the
ruling of the district court.” Salt Lake City Corp. v. Big Ditch
Irrigation Co., 2011 UT 33, ¶ 19, 258 P.3d 539. “Likewise, the
determination of whether a contract is facially ambiguous is a
question of law, which we review for correctness.” McNeil Eng’g
& Land Surveying, LLC v. Bennett, 2011 UT App 423, ¶ 7, 268 P.3d
854. And we “resolve questions of facial ambiguity in a contract
according to the parties’ intent, which is a question of fact.” Id.“If the contract is ambiguous and the [district] court makes
findings regarding the intent of the parties, we will not disturb
those findings unless they are clearly erroneous.” Allstate Enters.,
Inc. v. Heriford, 772 P.2d 466, 468 (Utah Ct. App. 1989).
¶18 The second issue relates to attorney fees. PCL first argues
the district court erred in awarding Memorial fees when
Memorial failed to categorize its fees as required by Utah law. It
also argues the court abused its discretion in awarding Memorial
“unreasonable” fees. “Whether the district court applied the
correct legal standard is a question of law, which we review for
correctness.” Bad Ass Coffee Co. v. Royal Aloha Int’l, LLC, 2015 UT
App 303, ¶ 6, 365 P.3d 161. “Assuming that the district court has
applied the correct legal standard,” id., “the standard of review
on appeal of a [district] court’s award of attorney fees is patent
error or clear abuse of discretion,” Valcarce v. Fitzgerald, 961 P.2d
305, 316 (Utah 1998) (quotation simplified).
ANALYSIS
I. The Lease Agreement
¶19 PCL argues the district court erred in concluding the
Lease was ambiguous regarding the Bridge’s intended purpose
because the Lease “expressly represents that the Bridge is to be
used as nightclub seating.” PCL also contends the court erred in
considering extrinsic evidence and made a clearly erroneous
20170807-CA 7 2019 UT App 61KB Squared v. Memorial Bldg.
finding that the term “seating area” described on the Lease
attachment did not include “dancing and jumping” for a certain
occupancy of patrons.
¶20 When interpreting contracts, courts first look to
the “writing itself to ascertain the parties’ intentions,
and . . . consider each contract provision in relation to all of
the others, with a view toward giving effect to all and ignoring
none.” WebBank v. American Gen. Annuity Service Corp., 2002 UT
88, ¶ 18, 54 P.3d 1139 (quotation simplified). “If the language
within the four corners of the contract is unambiguous,
the parties’ intentions are determined from the plain meaning
of the contractual language, and the contract may be
interpreted as a matter of law.” Id. ¶ 19 (quotation
simplified). But “if the language of the contract is ambiguous
such that the intentions of the parties cannot be determined by
the plain language of the agreement, extrinsic evidence must be
looked to in order to determine the intentions of the parties.” Id.(quotation simplified). If the contract is ambiguous, “[w]e review
the [district] court’s construction based on extrinsic evidence
under the more deferential clearly-erroneous standard.” West
Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1313 (Utah Ct. App.
1991).
¶21 PCL contends the Lease unambiguously represents the
Bridge as a nightclub seating area. The text of the Lease contains
no mention of the Bridge or representations regarding its use.
Instead, PCL relies on the diagram attached to the Lease, which
depicts the floor plan and shows bench seating along the Bridge
with the notation “seating area.” PCL contends that this notation
was a guarantee that the Bridge could be used for premium
event seating, including dancing and jumping, for 50 to 80
nightclub patrons. Although the district court found this
argument to be “tenable,” no such guarantee is evident from the
face of the Lease. We agree the Lease is ambiguous and that the
district court properly considered extrinsic evidence to interpret
its terms.
20170807-CA 8 2019 UT App 61KB Squared v. Memorial Bldg.
¶22 “A party challenging the [district] court’s interpretation of
ambiguous terms of a contract faces a substantial appellate
burden.” Id. We will “affirm the [district] court’s findings if they
are based on sufficient evidence, viewing the evidence in the
light most favorable to the court’s construction.” Id. In this case,
the district court properly considered the extrinsic evidence.
First it looked to the diagram attached to the Lease, which
included the term “seating area” in reference to the Bridge. The
court found the “evidence was clear” that this diagram “was
taken from a prior construction document only for the purpose of
identifying the square footage of [the Club].” The court based this
finding on the reference to the diagram in the Lease itself, the
square footage calculation on the diagram, the underlying
correspondence regarding the diagram, and Memorial
Principal’s testimony regarding why the parties included the
diagram as an attachment to the Lease. Based on the evidence
presented, the court found “that Memorial did not, by attaching
that document, intend to represent or guarantee that that area
could be used up to a certain occupancy or for a specific
purpose.”
¶23 The district court also found that Memorial did not tell
PCL Principal during lease negotiations that PCL could use the
Bridge as premium event seating to allow scores of people to
jump and dance during concerts. “If [PCL Principal] relied upon
such a representation she was doing so based upon her
subjective understanding, which is insufficient . . . to support her
claim.” The court said it could not “accept a representation that
is simply not made in, or supported by, the Lease or any of the
circumstances surrounding its execution” and concluded it was
a “leap of logic . . . that ‘seating’ really means nightclub dancing,”
which includes dancing and jumping, and therefore this
assertion was “entirely unsupported and unreasonable.”
¶24 The evidence in the record supports the district court’s
findings. See Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 17,
305 P.3d 196 (“A [district] court’s factual findings are clearly
20170807-CA 9 2019 UT App 61KB Squared v. Memorial Bldg.
erroneous only if they are in conflict with the clear weight of the
evidence, or if this court has a definite and firm conviction that a
mistake has been made.” (quotation simplified)). PCL points to
several pieces of evidence it argues the court should have
weighed more heavily, but this court does not reweigh evidence
presented at trial. See In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435(“When a foundation for the court’s decision exists in the
evidence, an appellate court may not engage in a reweighing of
the evidence.”).
¶25 In any event, even if we assume “seating” includes
“dancing and jumping,” PCL’s claim still fails because the Lease
does not guarantee high occupancy for the Bridge and therefore
Memorial did not breach it. “Whether a party performed under a
contract or breached a contract is a question of fact.” Syme v.
Symphony Group LLC, 2018 UT App 212, ¶ 23 (quotation
simplified). “A party challenging a district court’s factual
findings on appeal bears a heavy burden of persuasion.” Dahl v.
Dahl, 2015 UT 79, ¶ 149. “Parties challenging factual findings
cannot persuasively carry their burden in this respect by simply
listing or rehashing the evidence and arguments they presented
during trial or by merely pointing to evidence that might have
supported findings more favorable to them.” Shuman v. Shuman,
2017 UT App 192, ¶ 8, 406 P.3d 258 (quotation simplified).
¶26 The district court noted that “if PCL wanted Memorial to
guarantee a specific number of people in a certain area they
could have done so, and should have demanded so in the
Lease.” PCL argues this information would not appear on a lease
agreement because occupancy issues are usually decided by city
zoning and enforcement officials. But that is precisely what
happened here. The city officials saw 85 to 100 individuals
dancing on the Bridge and told PCL to limit the number to 35.
¶27 The court also relied on several clauses in the Lease to
support its conclusion that Memorial did not breach it. First, the
Lease provided that PCL was “taking the property ‘as is’ and
20170807-CA 10 2019 UT App 61KB Squared v. Memorial Bldg.
[acknowledged] . . . that there [had] been a right to an
opportunity to inspect the property.” Second, the Lease’s general
purpose was to operate a “nightclub, entertainment, and other
event use,” not to guarantee PCL a specific occupancy of the
Bridge. Finally the Lease contained a provision that stated, “This
Lease contains all of the agreements of the parties hereto with
respect to matters covered or mentioned in this Lease and no
prior agreement, letters, representations, warranties, promises,
or understandings pertaining to any such matters shall be
effective for any such purpose.” Based on these clauses and
other evidence presented at trial, the court determined that PCL
was not guaranteed a specific occupancy or use of the Bridge
and Memorial had not breached any provision of the Lease. The
court also noted that the engineers found no structural flaws in
the Bridge and that PCL is still able to use it. Significantly, “the
evidence was undisputed that the condition of the Bridge is in
the same condition it was when the Lease was signed.”
¶28 The court concluded “because PCL is able to use the
bridge for furtherance of its nightclub operation, and because
there is no representation or guarantee of a specific use or
occupancy, there is no breach of the terms of the Lease.” This
finding was not clearly erroneous and therefore Memorial did
not breach the Lease. 2
¶29 We conclude the district court correctly ruled the Lease
was ambiguous and that the term “seating area” did not
expressly include “dancing and jumping.” Further, the court did
not clearly err in interpreting the extrinsic evidence to conclude
the Lease was not intended to guarantee “dancing and
2. Because Memorial did not breach the Lease, PCL is not
entitled to damages. See Christensen & Jensen, PC v. Barrett
& Daines, 2008 UT 64, ¶ 26, 194 P.3d 931 (stating that “in a breach
of contract action, the non-breaching party is required to show
that the breach proximately caused the damages sought”).
20170807-CA 11 2019 UT App 61KB Squared v. Memorial Bldg.
jumping.” Finally, the court did not clearly err in its
determination that Memorial did not breach the Lease by failing
to repair the Bridge because the Lease did not guarantee any
particular occupancy on the Bridge and PCL is currently able to
use the Bridge to advance the general purpose of operating a
nightclub.
II. Attorney Fees
¶30 PCL argues the district court erred when it awarded
Memorial attorney fees because Memorial’s fees should have
been categorized consistent with Utah law. It also argues the
court erred in “failing to address unreasonable fees requested by
Memorial.”
¶31 “In Utah, attorney fees are awardable only if authorized
by statute or by contract. If provided for by contract, the award
of attorney fees is allowed only in accordance with the terms of
the contract.” Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah
1988) (quotation simplified). The requested fees must also be
reasonable and “[a] party who requests an award of attorney
fees has the burden of presenting evidence sufficient to support
an award.” Cottonwood Mall Co. v. Sine, 830 P.2d 266, 268 (Utah
1992). The evidence introduced regarding the reasonableness of
the attorney fees should address several factors such as,
the difficulty of the litigation, the efficiency of the
attorneys in presenting the case, the reasonableness
of the number of hours spent on the case, the fee
customarily charged in the locality for similar
services, the amount involved in the case and the
result attained, and the expertise and experience of
the attorneys involved.
Dixie State, 764 P.2d at 989 (quotation simplified). The court must
then “make an independent evaluation of the reasonableness of
the requested fees in light of the parties’ evidentiary
20170807-CA 12 2019 UT App 61KB Squared v. Memorial Bldg.
submissions.” Crane-Jenkins v. Mikarose, LLC, 2016 UT App 71,
¶ 5, 371 P.3d 49 (quotation simplified). “An award of attorney
fees must be based on the evidence and supported by findings of
fact.” Cottonwood Mall, 830 P.2d at 268.
¶32 In this case, the Lease stated, “In the event of any . . .
dispute regarding [the Lease’s] terms and conditions or
enforcement, the non-prevailing party agrees to reimburse the
prevailing party for all expenses and costs, including reasonable
attorney’s fees incurred in enforcing the terms hereof.”
¶33 PCL argues Memorial should have been required to
categorize its fees. PCL cites this court’s decision in Crane-Jenkins
to support its position. Crane-Jenkins requires a party seeking
attorney fees to categorize the time and fees expended for “(1)
successful claims for which there may be an entitlement to
attorney fees, (2) unsuccessful claims for which there would
have been an entitlement to attorney fees had the claims been
successful, and (3) claims for which there is no entitlement to
attorney fees.” 2016 UT App 71, ¶ 21 (quotation simplified).
Here, Memorial was awarded fees under a broad Lease
provision that allows it to recover any reasonably incurred
attorney fees in a dispute related to the terms and conditions of
the Lease. Memorial argues that it need not allocate its fees
because each of its defenses and counterclaims related to
whether it had to repair the Bridge under the Lease.
¶34 We agree with Memorial that when a dispute involves
“multiple claims involving a common core of facts and related
legal theories, and [a party] prevails on at least some of its
claims, it is entitled to compensation for all attorney fees
reasonably incurred in the litigation.” Golden Meadows Props., LC
v. Strand, 2010 UT App 257, ¶ 35, 241 P.3d 375 (quotation
simplified). Because all of Memorial’s defenses and
counterclaims related to the same issue of whether it was
required to “repair” the Bridge under the Lease, we conclude it
was not obligated to separately categorize its fees.
20170807-CA 13 2019 UT App 61KB Squared v. Memorial Bldg.
¶35 With respect to the reasonableness of the fees, the district
court considered the difficulty of the litigation, the fee
customarily charged in the locality for similar services,
the amount involved in the case and the result attained, and
the expertise and experience of the attorneys involved. It
found these factors were not disputed and that they
“preponderate[d] in favor of Memorial’s request.” The
court separately, and in detail, discussed the remaining factors of
reasonableness in terms of the number of hours spent on the
case and the efficiency of the attorneys presenting the case
and concluded that “a reasonable amount for Memorial’s
reasonable and necessary attorney fees and costs incurred in this
matter, for which [PCL] should be responsible . . . [totals]
$147,714.” The court noted, “This amount represents a reasonable
approximation of fees and costs.” The court relied on Alexander v.
Brown, which affirmed a district court’s award of attorney fees
where the district court chose the middle ground between two
estimates, a compromise between the amounts suggested by
counsel for each side of what were reasonable fees. 646 P.2d 692,
695 (Utah 1982).
¶36 The court also specifically excluded certain fees it found
unreasonable, which included “all costs and fees incurred in
filing [Memorial’s] failed dispositive motions,” the “costs
associated with [two of] Memorial’s experts” because the court
“found their testimony to be unhelpful,” and “the costs
associated with [Memorial’s] defense of [PCL’s] damage theory”
because the court found in favor of Memorial and did not award
PCL damages. And, as previously noted, the court ultimately
awarded Memorial considerably less than the amount it
requested. We conclude the district court did not abuse its
discretion in awarding Memorial its reasonable attorney fees. 3
3. We also note that PCL has not identified a specific fee entry
that was improperly awarded by the district court.
20170807-CA 14 2019 UT App 61KB Squared v. Memorial Bldg.
¶37 Finally, both parties request attorney fees incurred on
appeal. “A party entitled by contract or statute to attorney fees
below and that prevails on appeal is entitled to fees reasonably
incurred on appeal.” Federated Capital Corp. v. Abraham, 2018 UT
App 117, ¶ 15, 428 P.3d 21 (quotation simplified). The district
court awarded Memorial attorney fees below pursuant to the
Lease. Because Memorial has prevailed on appeal, we award it
reasonable attorney fees incurred on appeal.
CONCLUSION
¶38 The district court did not err in determining that the
Lease’s use of the phrase “seating area” did not include
“dancing and jumping.” Neither did it err in finding Memorial
did not breach the Lease. Finally, the court did not abuse its
discretion in awarding Memorial its reasonably incurred
attorney fees, and we therefore award Memorial its fees
reasonably incurred on appeal. We remand for the limited
purpose of determining reasonable attorney fees incurred by
Memorial in connection with defending the court’s ruling on
appeal.
20170807-CA 15 2019 UT App 61