Gardiner v. Anderson

2018 UT App 167

THE UTAH COURT OF APPEALS

RICHARD E. GARDINER,
Appellant and Cross-appellee,
v.
NELS ANDERSON,
Appellee and Cross-appellant.

Opinion
No. 20170551-CA
Filed August 30, 2018

Fourth District Court, Fillmore Department
The Honorable Jennifer A. Brown
No. 160700010

Todd F. Anderson, Attorney for Appellant
and Cross-appellee
Marlin J. Grant, Attorney for Appellee
and Cross-appellant

JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

TOOMEY, Judge:

¶1 Richard E. Gardiner (Landlord) appeals the district
court’s grant of summary judgment in favor of Nels Anderson
(Tenant). Tenant cross-appeals the court’s decision to award
Landlord attorney fees with respect to Landlord’s motions to
strike and the court’s denial of Tenant’s request for attorney fees
as the prevailing party. We affirm the district court’s grant of
summary judgment in favor of Tenant because Landlord’s claim
fails as a matter of law. We remand to the district court to
provide findings of fact and conclusions of law to support its
decision to award attorney fees to Landlord for the motions to
strike. We reverse the district court’s conclusion that the Lease
did not trigger the reciprocal attorney fees statute and remand
 Gardiner v. Anderson

for the court to determine whether Tenant should be awarded
attorney fees as the prevailing party. We further conclude
Tenant is entitled to attorney fees on appeal and remand to
determine the reasonable amount of fees incurred on appeal and
cross-appeal.

BACKGROUND

¶2 On November 1, 2013, Landlord and Tenant entered into
a lease agreement (the Lease) for a warehouse building (the
Warehouse) to last for two years until October 31, 2015. The
Lease provided that Tenant was to “repair” the Warehouse “at
[Tenant’s] sole cost and expense, including, but not limited to,
electrical fixtures, interior painting and decorating, and glass
replacement.” The agreed rent escalated gradually over time
from $600 per month to $1,000 per month. The Lease prohibited
Tenant from subleasing the Warehouse without Landlord’s prior
written consent. The sublease provision states:

[Tenant] shall not . . . sublet or permit the leased
premises or any part thereof to be used by others
for any purpose, without prior written consent of
[Landlord] being first obtained in each instance;
provided, however, that regardless of any such
assignment or sublease, [Tenant] shall remain
primarily liable for the payment of the rent herein
reserved and for the performance of all the other
terms of this lease required to be performed by
[Tenant].

¶3 Despite this provision, Tenant entered into an oral
agreement to sublet the Warehouse to a subtenant (Subtenant),
beginning November 1, 2013—the same day the Lease went into
effect—without Landlord’s written consent. Tenant and
Subtenant orally agreed that Subtenant would pay $2,250 per
month in rent from November 1, 2013, through October 31, 2014;

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and $3,000 per month from November 1, 2014, through March
31, 2015. They later signed a written agreement to sublet 1 the
Warehouse for $5,000 per month from April 1, 2015, to
September 30, 2015.

¶4 In July 2015, Landlord discovered that Tenant was
subletting the Warehouse and sent Tenant a letter in September
2015, giving Tenant written notice of his default of the sublease
provision and giving him ten days to cure by paying Landlord
$30,000. Because Tenant chose not to cure the breach, Landlord
terminated the Lease pursuant to its default provisions. Tenant
promptly vacated the Warehouse.

¶5 A few months later, Landlord filed a complaint, alleging
that Tenant unlawfully detained the Warehouse, breached the
Lease, and was unjustly enriched by the Sublease. Landlord
claimed he had been damaged by the Sublease in the amount of
$53,100, arguing that he “would have agreed to the Sublease if
Tenant had paid Landlord the difference between Tenant’s rent
and what Tenant received from [Subtenant].” Landlord sought
treble damages in the amount of $159,300 and reasonable
attorney fees, arguing that the Sublease amounted to an
unlawful detainer under Utah Code section 78B-6-802(1)(d).
Alternatively, he sought $53,100 in damages for either breach of
contract or unjust enrichment, stating that “it would be unjust
for the Tenant to retain the benefit from the sublet rent that he
received.”

¶6 Tenant filed an answer and later a Motion to Dismiss or in
the Alternative for Summary Judgment (Tenant’s Motion for
Summary Judgment). He attached a Verified Memorandum of
Points and Authorities (the Verified Memorandum) in which he

1. We refer to the oral and written agreements, collectively, as
the Sublease.

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swore “under oath to tell the whole truth.” In the Verified
Memorandum, Tenant articulated material facts that were
substantially similar to Landlord’s complaint, including that
Tenant breached the Lease, entered into a Sublease, chose not to
cure the breach, and vacated in a timely fashion pursuant to the
Lease’s default provision. He referred to Landlord’s complaint
and the exhibits attached to it to support these facts. Tenant also
argued that Landlord’s unlawful detainer claim failed because
Tenant returned possession of the Warehouse to Landlord before
the term of the notice expired. He further argued that Landlord
had no remedy for breach of contract because the Lease allowed
Landlord to terminate the Lease and collect the $1,000 rent due
each month through the end of the Lease, which included lost
rents from Tenant between September 14, 2015, and October 31,
2015, but, according to Tenant, nothing in the Lease entitled
Landlord to the rent from the Sublease. Finally, he argued that
without evidence of an unlawful detainer or a provision in the
Lease that would entitle Landlord to such damages, Landlord
could not claim that Tenant was unjustly enriched from the rent
collected under the Sublease.

¶7 Landlord opposed Tenant’s Motion for Summary
Judgment, arguing that the Verified Memorandum did not
comply with rule 56 of the Utah Rules of Civil Procedure
because it did “not state that the facts set forth in the pleading
were true and correct to the personal knowledge of the signer,”
and instead “attempt[ed] to verify the entire contents of the
pleading, not just the factual assertions, and some of the facts
sworn were . . . mere assumptions or conclusions.” 2 Landlord

2. We note that Landlord’s complaint and motion for summary
judgment also included “mere assumptions or conclusions,” the
most notable being that his statement of facts asserted that
Landlord “would have agreed to the sublease if [Tenant] had
(continued…)

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also “[d]isputed” many of the facts in the Verified
Memorandum, essentially claiming that the facts were not
relevant to the complaint or re-characterizing the way Tenant
had articulated them. 3

¶8 Landlord then filed his own motion for summary
judgment (Landlord’s Motion for Summary Judgment), asserting
that there was no dispute as to any material fact and arguing
that subletting the Warehouse without Landlord’s written
consent was an unlawful detainer and a breach of contract,
which “entitled [him] to judgment” for $153,600 4 plus reasonable
attorney fees and post-judgment interest. Shortly thereafter,
Tenant filed a reply memorandum in support of his own motion
for summary judgment and then a memorandum in opposition

(…continued)
paid [Landlord] the difference between [Tenant’s] rent and what
[Tenant] received from [Subtenant].”

3. For example, Tenant’s Verified Memorandum stated that he
did not hear from Landlord after Tenant vacated until he was
served with a summons in May 2016. Landlord “[d]isputed” this
fact and referred to his own affidavit stating that there was an
email thread between Landlord and Tenant about an event
unrelated to the dispute regarding the Lease, the Sublease, or the
Warehouse. It would not be unreasonable to infer that Tenant’s
stated fact meant that he had not heard from Landlord with
respect to the breach of the Lease or Landlord’s request for the
excess rent as damages as a consequence of that breach until he
was served with a summons.

4. Landlord’s calculation of damages in his motion for summary
judgment differs from the amount articulated in his complaint.
Because we conclude Landlord was not entitled to any of his
claimed damages, we do not address this discrepancy.

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to Landlord’s Motion for Summary Judgment. Landlord filed
motions to strike both of these replies (the Motions to Strike),
claiming they were untimely filed and failed to comply with the
Utah Rules of Civil Procedure. The district court heard argument
on the Motions to Strike and ultimately struck Tenant’s two
reply memoranda for being untimely and ordered Tenant to pay
Landlord attorney fees and costs related to the Motions to Strike.
But the court determined that, because Tenant filed a motion for
summary judgment, Landlord’s Motion for Summary Judgment
was opposed and the court would therefore “consider
arguments and material” from the Verified Memorandum. 5

5. Even in situations where a motion for summary judgment is
unopposed, the moving party bears the burden of showing that
it is entitled to summary judgment as a matter of law by
demonstrating it is entitled to the remedy it seeks either under a
contract or law. Utah R. Civ. P. 56(a). Summary judgment may
be granted to a nonmoving party even if the nonmoving party
did not file a memorandum in opposition to the moving party’s
motion for summary judgment. See id. R. 56(f)(1) (explaining that
a court may enter judgment “independent of the motion” and
may “grant summary judgment for a nonmoving party” “[a]fter
giving [the nonmoving party] notice and a reasonable time to
respond”). In addition, with respect to cross-motions for
summary judgment, as is relevant here, each party “must
establish its own entitlement to summary judgment rather than
simply rely on the other party’s failure on its own motion.”
Martin v. Lauder, 2010 UT App 216, ¶ 7, 239 P.3d 519. Further,
this court has determined that “[c]ross-motions for summary
judgment do not ipso facto dissipate factual issues, even though
both parties contend that they are entitled to prevail because
there are no material issues of fact.” Id. ¶ 8 (quotation
simplified). “Rather, cross-motions may be viewed as involving
a contention by each movant that no genuine issue of fact exists
(continued…)

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 Gardiner v. Anderson

¶9 The district court considered both parties’ motions for
summary judgment. It concluded that nothing in the unlawful
detainer statute or the Lease supported Landlord’s claim for
damages of $53,100 in rent Tenant obtained from the Subtenant.
The court determined that “the only remedy [Landlord] appears
to be entitled to is a declaration under [the unlawful detainer
statute] that the [Lease] is forfeited due to [Tenant’s] failure to
perform a condition or covenant therein.” Tenant complied with
Landlord’s notice to vacate when he elected to promptly vacate
the Warehouse rather than cure the breach and therefore did not
unlawfully possess it. The court further concluded that even if
Tenant was in “unlawful detainer” of the Warehouse under Utah
Code section 78B-6-802(1)(d) for unauthorized subletting, that
section “does not specifically provide for damages for
unauthorized subletting” and neither did the Lease. As a result,
the court granted summary judgment in favor of Tenant and
denied Landlord’s cross-motion.

¶10 In light of judgment in his favor, Tenant requested
attorney fees, contending that he was the prevailing party in the
lawsuit because he successfully defended against Landlord’s
complaint. He also argued that he was entitled to attorney
fees under the unlawful detainer statute because he
successfully defended against the claim of unlawful detainer.
Landlord challenged the request, arguing that the Lease’s
enforcement provision provided for attorney fees only to the

(…continued)
under the theory it advances, but not as a concession that no
dispute remains under the theory advanced by its adversary.” Id.
(quotation simplified). “In effect, each cross-movant implicitly
contends that it is entitled to judgment as a matter of law, but
that if the court determines otherwise, factual disputes exist
which preclude judgment as a matter of law in favor of the other
side.” Id. (quotation simplified).

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party not in breach of the Lease. The enforcement provision
states:

Should either party default in the performance of
any covenants or agreements contained herein,
such defaulting party shall pay to the other party
all costs and expenses, including but not limited to,
. . . reasonable attorney’s fee[s], including such fees
on appeal, which the prevailing party may incur in
enforcing [the Lease] or in pursuing any remedy
allowed by law for breach hereof.

¶11 The district court denied Tenant’s request, concluding
that Tenant was the defaulting party and that the Lease “does
not provide a basis for an award of attorney fees to . . . the party
in default.” The court further concluded that Landlord did not
become the party in default by virtue of losing the lawsuit. The
court also concluded that Tenant was not entitled to attorney
fees under the unlawful detainer statute, because the provision
that would have allowed for such an award was not in effect
until May 2017, 6 after the complaint had been filed. Because the
statute did not state that it could be applied retroactively and
because the statute was not amended to clarify its meaning in
response to judicial action, the court concluded Tenant was not

6. Effective May 9, 2017, the unlawful detainer statute was
amended to add a subsection that states: “In an action under this
chapter, the court may award costs and reasonable attorney fees
to the prevailing party.” Utah Code Ann. § 78B-6-811(5)
(LexisNexis Supp. 2017). Prior to the amendment, only one
subsection of the statute included attorney fees language: “The
judgment shall be entered against the defendant for the rent, for
three times the amount of the damages assessed under
Subsections (2)(a) through (2)(e), and for reasonable attorney
fees.” Id. § 78B-6-811(3) (2012).

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entitled to attorney fees under that statute. (Citing Utah Code
Ann. § 86-3-3 (LexisNexis 2016); Wasatch County v. Okelberry,
2015 UT App 192, ¶ 17, 357 P.3d 586.)

¶12 Landlord appeals the court’s grant of summary judgment
in favor of Tenant. Tenant cross-appeals the court’s order
requiring him to pay attorney fees for the Motions to Strike and
for the denial of his request for attorney fees as the prevailing
party.

ISSUES AND STANDARDS OF REVIEW

¶13 Landlord contends the district court erred in granting
summary judgment in favor of Tenant in three respects. He first
argues that the court should have denied Tenant’s Motion for
Summary Judgment “on its face” because the Verified
Memorandum did not include citations to “particular parts of
materials in the record” in violation of rule 56(a) of the Utah
Rules of Civil Procedure. Second, he argues that Landlord’s
Motion for Summary Judgment should have been granted
because the court should have dismissed the Verified
Memorandum in its entirety based on its failure to conform with
rule 56 and therefore the court could not have relied on it as a
replacement for Tenant’s opposition to Landlord’s Motion for
Summary Judgment. 7 Third, Landlord argues that the court

7. Landlord further contends the district court erred in denying
his motion for summary judgment because it was unopposed.
We note, however, that in Landlord’s Motion for Summary
Judgment he cited the Verified Memorandum in his statement of
facts to support the factual assertion of the amount of rent
Tenant collected from Subtenant under the Sublease. He
therefore relied on a document, the Verified Memorandum, that
he asserts the court should not have considered in determining
whether there was a dispute as to any material fact. We decline
(continued…)

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erred in determining that the Lease did not afford him the
damages he sought. 8

¶14 Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).
“We review the district court’s grant of summary judgment for
correctness and accord no deference to its conclusions of law.” 9

(…continued)
to address this claim for two reasons. First, as discussed infra
¶¶ 16–20, Landlord’s claim fails as a matter of law, because the
remedy he seeks is not available under the Lease or case law
from any jurisdiction. Second, the district court has discretion in
requiring compliance with briefing requirements under rule 56
of the Utah Rules of Civil Procedure, see Bluffdale City v. Smith,
2007 UT App 25, ¶ 5, 156 P.3d 175, and could therefore review
the Verified Memorandum because it complied with the purpose
of that rule and was beneficial to the court’s determination.

8. On appeal, Landlord has abandoned his unlawful detainer
claim and elected to proceed on the court’s ruling only with
respect to his claim for damages under the breach of the Lease.

9. We take this opportunity to address some confusion raised by
Landlord as to the applicable standard of review. Use of the
terms “for correctness,” “de novo,” and “correction of error”
under the Issues and Standards of Review sections of our
opinions mean that we afford “no deference” to the district
courts’ rulings with respect to their legal conclusions. See Salt
Lake County v. Holliday Water Co., 2010 UT 45, ¶ 14, 234 P.3d 1105
(“We review a summary judgment determination for
correctness, granting no deference to the district court’s legal
conclusions.” (quotation simplified)); Innerlight, Inc. v. Matrix
Group, LLC, 2009 UT 31, ¶ 8, 214 P.3d 854 (“We review a district
(continued…)

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 Gardiner v. Anderson

Dillon v. Southern Mgmt. Corp. Ret. Trust, 2014 UT 14, ¶ 21, 326
P.3d 656 (quotation simplified). “We may affirm the result
reached by the [district] court if it is sustainable on any legal
ground or theory apparent on the record, even though that
ground or theory was not identified by the lower court as the
basis of its ruling.” Id. (quotation simplified).

¶15 Tenant cross-appeals and contends the district court erred
in awarding attorney fees to Landlord for the Motions to Strike. 10

(…continued)
court’s grant of summary judgment de novo, considering the
record as a whole, with no deference afforded to the legal
conclusions of the district court.”); Raile Family Trust ex. rel. Raile
v. Promax Dev. Corp., 2001 UT 40, ¶ 8, 24 P.3d 980 (“On appeal
from the district court’s ruling on summary judgment, we apply
a correction of error standard, affording the [district] court’s
ruling no deference.”).

10. Landlord filed a motion to dismiss Tenant’s cross-appeal
with respect to this issue. Landlord contends the issue is “moot”
because Tenant has already paid the attorney fees related to the
Motions to Strike. In support, Landlord cites rule 58B(c) of the
Utah Rules of Civil Procedure and Richards v. Brown, 2012 UT 14,
274 P.3d 911, abrogated on other grounds by Utah Res. Int’l, Inc. v.
Mark Techs. Corp., 2014 UT 59, 342 P.3d 761. But his reliance on
these sources is misplaced. Under rule 58B(c), “[s]atisfaction of a
judgment, whether by acknowledgment or order, discharges the
judgment, and the judgment ceases to be a lien as to the debtors
named and to the extent of the amount paid.” Utah R. Civ. P.
58B(c). This means that the party who was paid the judgment
cannot seek more damages for the same judgment from the same
debtor (that is, the person who paid the judgment) after
accepting the payment. As applied to this case, Landlord could
not appeal any claimed error in the amount of attorney fees
(continued…)

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 Gardiner v. Anderson

(…continued)
awarded for preparing the Motions to Strike, because Tenant
paid the attorney fees he was ordered to pay to satisfy the
judgment and Landlord has accepted those fees. The rule does
not, on its face, prohibit Tenant, as the debtor, from appealing
the amount or the order.
Similarly, Landlord’s use of Richards is misplaced.
Landlord selectively quoted a “general rule” that did not apply
in Richards and does not apply in this case. The Richards court
explained, “The general rule is that if a judgment is voluntarily
paid, and is accepted, and a judgment is thereby satisfied, the
controversy has become moot and the right to appeal is waived.”
2012 UT 14, ¶ 13 (emphasis added) (quotation simplified). But
the Richards court determined that, although the appellant had
accepted payment as satisfaction of the judgment of one of his
claims, he did not waive his right to appeal because “the appeal
is waived only for the specific claims upon which payment is
accepted.” Id. ¶¶ 13–16. The Richards court did not discuss
whether a party who pays a judgment under protest is
precluded from appealing whether the court properly ordered
the payment. To the contrary, the Utah Supreme Court has
clarified that, “although the general rule that voluntary payment
of a judgment waives one’s right to appeal is still valid, where a
judgment debtor’s intention of preserving his right to appeal is
made to appear clearly on the record, he does not waive his right
to appeal.” Mark Techs. Corp., 2014 UT 59, ¶ 33 (quotation
simplified).
Here, although Tenant paid the fees, he did so under
protest and is therefore not precluded from appealing the district
court’s order with respect to the propriety of those fees. See id.
Tenant objected to the award of attorney fees to Landlord,
requested the court stay the order awarding attorney fees until
after a decision on appeal, and then filed a notice of cross-appeal
with the intent to challenge that award, as well as the court’s
(continued…)

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 Gardiner v. Anderson

Tenant further contends the court erred in denying his request
for attorney fees as the prevailing party and for “defend[ing]
against this unnecessary litigation” where Tenant timely vacated
the Warehouse in accordance with the terms of the Lease.
“Whether attorney fees are recoverable in an action is a question
of law, which we review for correctness.” Express Recovery
Services Inc. v. Olson, 2017 UT App 71, ¶ 5, 397 P.3d 792
(quotation simplified). “We review the [district] court’s
determination as to who was the prevailing party under an
abuse of discretion standard.” Id. (quotation simplified). 11

(…continued)
failure to award Tenant attorney fees for successfully defending
the case. We conclude Landlord’s argument is without merit and
address both of Tenant’s attorney fees issues.

11. Landlord also contends he “should have been awarded
reasonable attorney’s fee and costs and expenses where [Tenant]
was found to have breached [the Lease] and thus was in default
in the performance of [the Lease].” (Quotation simplified.) He
asserts the issue was preserved because he requested reasonable
attorney fees in Landlord’s Motion for Summary Judgment, but
that the court “did not address the issues, however, in its
[ruling], presumably because, having held that [the Lease] does
not provide for damages as requested by [Landlord], [Landlord]
was also not eligible for a reasonable attorney’s fee.” This
argument is unpreserved. “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 (quotation simplified).
We will not address an unpreserved issue on appeal unless the
appellant argues that an exception to the preservation rule
applies. Id. ¶¶ 12–13. Although Landlord vaguely requested
reasonable attorney fees in his motion for summary judgment—
(continued…)

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ANALYSIS

I. Motion for Summary Judgment

¶16 Landlord contends the district court erred in granting
summary judgment in favor of Tenant for three reasons. But
because we can affirm summary judgment on any ground or
theory apparent on the record, regardless of whether it was
identified by the district court as the basis of its ruling, see Dillon,
2014 UT 14, ¶ 21, we do not address each of his arguments and
instead affirm on the basis that Landlord’s claim fails as a matter
of law. We agree with the district court that the Lease “does not
provide for damages as requested by [Landlord].”

¶17 Landlord argues that “the law must provide a remedy in
damages” and that “‘damages are properly measured by the
amount necessary to place the nonbreaching party in as good a
position as if the contract had been performed.’”12 (Quoting

(…continued)
stating that his damages included “reasonably incurred attorney
fees (provided for by contract)”—he did not argue below that
the court improperly failed to rule on his request for attorney
fees, and he failed to provide any argument below for why the
Lease afforded him attorney fees even in the event summary
judgment was granted in favor of Tenant as the defaulting party.
He has also failed to argue an exception to the preservation rule.
We therefore do not address the issue on appeal.

12. We are perplexed by Landlord’s argument that the remedy
he pursued under the Lease—either that Tenant pay $30,000 and
evict Subtenant to cure the breach or vacate the premises and
pay the rent due for the remainder of the Lease, which Tenant
did—has not placed Landlord in the same position as Landlord
would have been in if Tenant never breached the Lease.

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Alexander v. Brown, 646 P.2d 692, 695 (Utah 1982).). He
asserts that “it is an undisputed material fact that [he] would
have agreed to the sublease if [Tenant] had paid [him] the
difference between [Tenant’s] rent and what [Tenant]
received from [Subtenant].” For example, Landlord claims he
deserves $4,000 per month for the months when Tenant was
required to pay $1,000 per month for rent under the Lease and
Subtenant was required to pay $5,000 per month for rent
under the Sublease. Landlord argues that, had the parties
entered into that agreement, he would have been paid the
excess rent he now seeks. Though this might be true, we do not
see how this legally entitles Landlord to the excess rent from the
Sublease without a provision in the Lease providing for
those damages. Instead, it appears Landlord is requesting
the court to enforce “an alternative benefit to the bargain”
than the agreement he reached with Tenant in the Lease based
on “something he might have contracted for under
different circumstances.” See Toll v. Tannenbaum, 982 F. Supp. 2d
541, 559 (E.D. Pa. 2013). As in Toll, this argument fails because it
is a request for equitable relief that “hinges on the existence of an
agreement.” See id. (quotation simplified). There was no
agreement to pay the difference between Tenant and Subtenant’s
rent and there is nothing in the record to suggest that Tenant
would have agreed to Landlord’s conditions for consenting to
the Sublease.

¶18 Because there is no Utah case law that has
addressed whether a landlord can recover excess rents
obtained by a tenant through a nonconforming sublease without
a provision allowing for such recovery, we requested
supplemental briefing from the parties to explain how other
jurisdictions have addressed this issue. Landlord has failed to
provide case law from any jurisdiction that has addressed
the issue with facts similar to this case that would support his
request for damages. He cites Long Building v. Buffalo Anthracite

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Coal Co., 74 N.Y.S.2d 281 (N.Y. Special Term 1947), 13 in which a
landlord sued a tenant for breach of lease for subletting a portion

13. Landlord also cites Theater Row Phase II Associates v. National
Recording Studios, Inc., 291 A.D.2d 172 (N.Y. App. Div. 2002). In
that case, the court stated, “We perceive no logical support for
the absolute rule relied upon by [the tenant] that damages for
breach of a covenant against unauthorized subletting may under
no circumstances include any of the rental fees collected by the
tenant from its subtenant.” Id. at 175. The court concluded that,
in that “particular instance[,] it [was] especially inappropriate”
to determine that excess rent was not a consequential damage of
an illegal sublease, “because the terms of the lease tend[ed] to
support [the landlord’s] right to claim entitlement to the excess
rents collected by the tenant from its subtenant beyond the
amount payable to the landlord.” Id. at 176. This was because
“the contract [gave] the landlord the option to sublease any
space the tenant propose[d] to sublease,” and it was therefore
“possible to infer that the parties intended to give the landlord
the right to any expected profits that could be derived from a
sublet.” Id.
Landlord’s supplemental brief uses this case to support a
new argument under a different provision of the Lease—
paragraph 22(C)(4)—for his ability to collect the excess rent
obtained under the Sublease. Landlord never argued in his
opening brief on appeal, let alone to the district court in
Landlord’s Motion for Summary Judgment, that
paragraph 22(C)(4) governs whether he is entitled to the
damages he seeks. It would be unfair to entertain this new
argument because Tenant did not have an opportunity to
respond. Cf. Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903
(explaining that the requirement that “an appellant’s reply brief
shall be limited to answering any new matter set forth in the
opposing brief” is “rooted in considerations of fairness” because
“if new issues could be raised in a reply brief, the appellee
(continued…)

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 Gardiner v. Anderson

of the property without the landlord’s consent. Id. at 282. The
landlord claimed he had “no adequate remedy at law, and,
therefore, demand[ed] judgment for an accounting for the sums
of money received by the [tenant] from the subtenant.” Id. But
the court explained that “[i]t is well settled that where an
adequate remedy at law is provided, the reason for granting
equitable relief disappears[,] and if an equitable action does not
lie, for the reason that the plaintiff has an adequate remedy at
law, the defendant may, before answer, move to dismiss the
complaint upon that ground.” Id. (quotation simplified).

¶19 Here, Landlord not only had an adequate remedy at law
explicitly provided for under the Lease, he also pursued that
remedy, and Tenant complied. Landlord first sent a notice to

(…continued)
would have no opportunity to respond to those arguments”
(quotation simplified)). We conclude this requirement applies
equally to new arguments raised in a supplemental brief that
responds to the court’s request for case law that supports the
arguments already made by the appellant. Cf. id. (“It is well
settled that issues raised by an appellant in the reply brief that
were not presented in the opening brief are considered waived
and will not be considered by the appellate court.” (quotation
simplified)); see also 4 C.J.S. Appeal & Error § 737 (2018)
(“Ordinarily only such points as are made and relied on in the
original briefs will be considered by the reviewing court in
disposing of the case, and supplemental, additional, or amended
briefs setting up errors not specified in the original briefs cannot
be filed without leave of court or consent of the opposite party,
except to the extent that the assignments of error suggest
fundamental error.” (quotation simplified)). We also note, with
some irony, that Landlord filed a motion to strike Tenant’s
supplemental brief for this exact reason, requiring Tenant to
respond to the motion.

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 Gardiner v. Anderson

Tenant to cure the default by paying $30,000 and evicting
Subtenant. When Tenant did not comply, Landlord sent another
notice stating: “Because you did not cure the default . . . I hereby
exercise my right, pursuant to ¶ 22(C)(1) of the Lease, to
terminate the Lease and hereby notify you that the Lease is
terminated. Pursuant to ¶ 22(C)(1) of the Lease, you must
‘surrender possession of the premises immediately.’”

¶20 Because Landlord pursued an adequate remedy at law for
Tenant’s breach, because the Lease did not provide for excess
rent as damages for a nonconforming sublease, and because
Landlord has not articulated any means by which he was
actually damaged or injured by the Sublease, we conclude that
Landlord’s claim fails as a matter of law. We therefore affirm the
district court’s grant of summary judgment in favor of Tenant
and the denial of Landlord’s motion for summary judgment. 14

14. Landlord argues that, although Tenant never claimed to have
cured the breach by paying Landlord the excess rent obtained
under the Sublease, the “district court erred as a matter of law”
when it “nonetheless concluded, without citing any authority,
that because the ‘lease agreement does not provide for damages,’
[Tenant] was entitled to summary judgment.” Landlord’s entire
argument below with respect to damages resulting from the
breach of the Lease amounted to three paragraphs in which he
(1) restated the sublease provision and the notice to cure
provision of the Lease; (2) included his own statement that he
would have given consent to a sublease based on the condition
that he receive the excess rent from the sublease; and
(3) provided two quotes from cases that stated that “[i]t is
axiomatic in the law that for every wrong there is a remedy,”
Kramer v. Pixton, 268 P. 1029, 1032 (Utah 1928), and “[d]amages
are properly measured by the amount necessary to place the
nonbreaching party in as good a position as if the contract had
(continued…)

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 Gardiner v. Anderson

II. Attorney Fees

A. Motions to Strike

¶21 Tenant asserts on cross-appeal that the district court erred
in ordering Tenant to pay attorney fees for the Motions to Strike.
“Whether attorney fees are recoverable in an action is a question
of law, which we review for correctness.” Federated Capital Corp.
v. Haner, 2015 UT App 132, ¶ 9, 351 P.3d 816 (quotation
simplified). To the extent that the district court exercised its
discretion to award attorney fees under either statute or one of
the Utah Rules of Civil Procedure, we review its decision for an
abuse of discretion. See id. ¶¶ 9–10. Here, the court failed to
provide any findings of fact or conclusions of law to support the
award. It is unclear whether the fees were awarded under a
provision of the Lease, a statute, or one of the Utah Rules of Civil
Procedure. This is concerning, because Landlord never
requested attorney fees in either of his Motions to Strike. We
therefore remand to the district court to revisit whether attorney

(…continued)
been performed,” Alexander v. Brown, 646 P.2d 692, 695 (Utah
1982). First, the court was not required to support its decision
with legal authority that the Lease did not provide for the
damages Landlord sought, because Landlord did not direct the
court to any language in the Lease that provided for such
damages. Second, it was Landlord’s burden to provide an
argument and supporting legal authority to show that he was
entitled to summary judgment as a matter of law. See Utah R.
Civ. P. 56(a); id. R. 7(d)(1)(B). Similar to our requirements on
appeal that an appellant’s arguments must be adequately briefed
so as not to “dump the burden of argument and research” on the
court, it is not the district court’s burden to research and develop
arguments for a moving party and then rebut them. Cf. Johnson v.
Johnson, 2014 UT 21, ¶ 20, 330 P.3d 704.

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 Gardiner v. Anderson

fees for the Motions to Strike are appropriate and, if so, to
supplement the order with findings of fact and conclusions of
law to support its decision.

B. Reciprocal Attorney Fees

¶22 Tenant further contends on cross-appeal that the district
court erred in denying attorney fees to Tenant as the prevailing
party.15 We agree.

¶23 Although we review whether an award of attorney fees is
appropriate for correctness, “we review certain related issues for
an abuse of discretion,” such as “the determination of which
party prevailed in a civil action.” Id. (quotation simplified).

¶24 Utah Code section 78B-5-826 provides that a court may
award costs and attorney fees to the prevailing party in a civil
action that is based upon a written contract and that written
contract “allow[s] at least one party to recover attorney fees.”
Utah Code Ann. § 78B-5-826 (LexisNexis 2012); see also Haner,
2015 UT App 132, ¶ 11 (“Under Utah’s reciprocal attorney fee
statute, courts may award attorney fees to the prevailing party of
a contract dispute so long as the contract provided for the award
of attorney fees to at least one of the parties[.]”). But see

15. Tenant also contends the district court erred in denying his
request for attorney fees as the prevailing party in an unlawful
detainer action, see Utah Code Ann. § 78B-6-811(5) (LexisNexis
Supp. 2017), and for filing the complaint and corresponding
motions in bad faith, see id. § 78B-5-825 (2012). Because we
conclude the court erred in determining that the reciprocal
attorney fee statute did not apply and remand for consideration
of whether Tenant should be awarded attorney fees for
successfully defending against the complaint and prevailing on
summary judgment, we decline to address the merits of these
arguments.

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 Gardiner v. Anderson

Blackmore v. L & D Dev. Inc., 2016 UT App 198, ¶¶ 39–43, 382
P.3d 655 (explaining that a district court erred when relying on a
“prevailing party” standard where the contract included only
“defaulting party” language).

¶25 Here, the enforcement provision of the Lease provides
that the “defaulting party shall pay to the other party all costs
and expenses, including but not limited to, a reasonable
attorney’s fee including such fees on appeal, which the prevailing
party may incur in enforcing [the Lease] or in pursuing any
remedy allowed by law for breach hereof.” (Emphasis added.)
Although this language provides that the defaulting party must
pay the prevailing party, “Utah courts generally apply a
common sense flexible and reasoned approach to the
interpretation of contractual ‘prevailing party’ language.” See
Express Recovery Services Inc. v. Olson, 2017 UT App 71, ¶ 10, 397
P.3d 792 (quotation simplified) (quoting A.K. & R. Whipple
Plumbing & Heating v. Guy, 2004 UT 47, ¶ 14, 94 P.3d 270).

¶26 The district court determined that “the fact that
[Landlord] pursued damages against [Tenant] that were
ultimately unsuccessful” does not translate into an award of
attorney fees to Tenant because, “[a]s in Blackmore, ‘this
provision clearly provides that the party who defaults is liable
for attorney fees’ and it would be error for this Court to award
attorney fees by deeming [Tenant] as the prevailing party under
the reciprocal attorney fee statute.” (Quotation simplified.) We
disagree. In Blackmore, the contract provided only “defaulting
party” language and not “prevailing party” language. Here, the
Lease included both. And, under the circumstances of this case,
when “apply[ing] a common sense flexible and reasoned
approach to the interpretation of contractual ‘prevailing party’
language” of the Lease, Tenant could have received costs and
attorney fees as the prevailing party. See Express Recovery Services
Inc., 2017 UT App 71, ¶ 10; see also Hooban v. Unicity Int’l Inc.,
2012 UT 40, ¶ 12, 285 P.3d 766 (explaining that the reciprocal

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 Gardiner v. Anderson

attorney fees statute “consists of a conditional if/then statement:
(a) If the provisions of a written contract allow at least one party
to recover attorney fees in a civil action based upon the contract,
(b) then a court may award attorney fees to either party that
prevails”). Tenant successfully defended against the complaint
and prevailed on summary judgment because Landlord was not
entitled to judgment either under the Lease or Utah law.

¶27 We conclude that the district court erred in determining
that the Lease did not trigger the reciprocal attorney fee statute,
because the enforcement provision of the Lease awarded
attorney fees to the prevailing party and Tenant prevailed
against Landlord’s complaint. See Hooban, 2012 UT 40, ¶ 12.
Although Tenant was the defaulting party, he had already cured
the default pursuant to the explicit requirements of the Lease by
the time Landlord filed the complaint, and Tenant was the
prevailing party in enforcing the Lease and defending against
Landlord’s claims under the unlawful detainer statute and
breach of contract. 16 We therefore remand to the district court to

16. We also take this opportunity to note that Landlord engaged
in a pattern of filing motions below and on appeal that appear to
be for purposes of delay or increasing the costs of litigation,
further supporting our conclusion that Tenant likely should have
been awarded attorney fees under the Lease as the prevailing
party. Landlord’s responses to Tenant’s motions, the Motions to
Strike below and on appeal, and Landlord’s motion to dismiss
the cross-appeal all claimed to be based on strict compliance
with the Utah Rules of Civil Procedure and the Utah Rules of
Appellate Procedure. We agree that compliance with the rules is
important, but the extent to which Landlord has attempted to
enforce them is not well taken. We agree with Tenant that on
numerous occasions, Landlord, through his attorney, has
“belittled” Tenant and filed “needless motions to strike” in an
attempt to “avoid . . . full briefing on the merits of the case.”
(continued…)

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 Gardiner v. Anderson

(…continued)
Indeed, our review of the record shows that many of
these filings appeared to “harass [Tenant] or to cause
unnecessary delay or needless[ly] increase the cost of litigation.”
See Utah R. Civ. P. 11(b)(1); Utah R. App. P. 40(b)(1). For
example, Tenant filed a notice of supplemental authority with
the district court, informing the court of a recent opinion issued
by this court, Express Recovery Services Inc. v. Olson, 2017 UT App
71, 397 P.3d 792. In this notice, Tenant explained how Express
Recovery supported his claim for attorney fees as the prevailing
party in a contract case where the contract awards attorney fees
to the prevailing party. See id. ¶¶ 17–19 (concluding that a party
was the prevailing party below, vacating the district court’s
order denying that party’s request for attorney fees, and
remanding to the district court to determine reasonable attorney
fees). Tenant also attached to the notice a printed copy of the
case. Landlord filed a response, arguing that the court should
not consider the notice, because it did not comply with rule 7(i)
of the Utah Rules of Civil Procedure. Specifically, he argued:
Rule 7(i) provides in pertinent part that, when a
party files a notice of citation to supplemental
authority, that notice must state “the citation to the
authority the page of the motion or memorandum
or the point orally argued to which the authority
applies, and the reason the authority is relevant.”
[Tenant’s] notice does not state “the page of the motion
or memorandum to which the authority applies.” The
court should thus not consider [his] notice.
(Emphasis added.) (Quotation simplified.) It is obvious from the
language of the notice that Tenant was referring to his motion
requesting attorney fees as the prevailing party on summary
judgment. Therefore, the notice was sufficient for the purpose of
rule 7(i). Landlord’s response to the notice resulted in Tenant
filing a reply to the notice to rebut this argument. Landlord then
(continued…)

20170551-CA 23 2018 UT App 167
 Gardiner v. Anderson

(…continued)
filed a motion to strike this reply, arguing that only the notice
and a response by the opposing party is permitted under rule
7(i) and “no other memorandum is permitted.” Landlord also
requested time at an upcoming hearing to address the issue.
Although the district court agreed with Landlord, we are
perplexed as to the reasoning because nothing in rule 7(i)
prohibits a reply under these circumstances. See Utah R. Civ. P.
7(i). We are unaware of any Utah case law that has addressed
this issue.
On appeal, Landlord filed a motion to dismiss Tenant’s
cross-appeal, arguing that Tenant’s docketing statement
included argument in violation of rule 9 of the Utah Rules of
Appellate Procedure. This court denied this motion to dismiss
because “[t]he docketing statement [was] sufficient to meet the
purposes stated in rule 9(a).” Landlord then filed a motion to
dismiss Tenant’s cross-appeal with respect to whether the court
erred in awarding attorney fees to Landlord on the Motions to
Strike, arguing the issue was moot because Tenant had already
paid those fees. We rejected that argument above, explaining
that Landlord failed to cite relevant case law in support of his
argument and that Utah case law specifically states that this type
of issue is not moot when the party objected on the record to the
award and paid the fees under protest. See supra note 10.
Landlord also filed a motion to strike Tenant’s supplemental
brief, yet, as we noted previously, Landlord’s supplemental brief
included the same errors that he claimed Tenant’s brief included.
See supra ¶ 18 & note 13. And in his reply brief on appeal,
Landlord argued that one of the facts Tenant had stated in his
response brief about an email from October 27, 2014, in which he
informed Landlord about a neighbor (Subtenant) who had
suffered a fire and needed to use the Warehouse, “not only [was]
not before the district court, but [was] an erroneous
characterization of the [email].” This fact was before the district
(continued…)

20170551-CA 24 2018 UT App 167
 Gardiner v. Anderson

determine whether Tenant should be awarded attorney fees for
successfully defending against Landlord’s complaint.

¶28 Tenant has also requested attorney fees on appeal.
Generally, “when a party who received attorney fees below
prevails on appeal, the party is also entitled to fees reasonably
incurred on appeal.” Golden Meadows Props., Inc. v. Strand, 2010
UT App 258, ¶ 13, 241 P.3d 371 (quotation simplified). Although
Tenant was not awarded attorney fees below, “we have held that
such fees may have been warranted and remand for further
consideration of the issue.” See Kimball v. Kimball, 2009 UT App
233, ¶¶ 50–52, 217 P.3d 733 (holding that attorney fees may have
been warranted below and remanding to the district court for
factual findings to support an award of attorney fees to the
husband, but also concluding that the husband was not entitled
to attorney fees incurred on appeal because he did “not
substantially prevail on appeal”). We therefore conclude Tenant
is entitled to attorney fees incurred on appeal for substantially
prevailing on appeal. See id.

(…continued)
court, not only because it was supported in an exhibit to the
Verified Memorandum, but also because Landlord referred to it
in his own affidavit in support of his opposition to Tenant’s
Motion for Summary Judgment. And our review of that email
supports Tenant’s explanation that a neighbor suffered a fire and
would be using the Warehouse to “house supplies until he has
time to get his facility rebuilt” and that Tenant “just wanted to
let [Landlord] know of [his] intentions and use of the building in
order to maintain transparency.”
The record is replete with examples such as these and
many appear to have served to delay the proceedings, distract
the court from the merits of the issues, mislead this court on
appeal, and increase the costs of litigation. See Utah R. Civ. P.
11(b)(1); Utah R. App. P. 40(b)(1).

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 Gardiner v. Anderson

CONCLUSION

¶29 We affirm the district court’s grant of summary judgment
in favor of Tenant because Landlord’s claim fails as a matter of
law. We reverse the district court’s conclusion that the Lease did
not trigger the reciprocal attorney fee statute and remand for the
court to determine whether Tenant should be awarded attorney
fees for successfully defending against Landlord’s complaint and
successfully enforcing the Lease. We further conclude that
Tenant is entitled to attorney fees on appeal, as well as on cross-
appeal, because he has substantially prevailed on appeal and
“we have held that such fees may have been warranted” below.
See Kimball, 2009 UT App 233, ¶¶ 50–52. We also remand for the
court to revisit its decision regarding the award of attorney fees
to Landlord for the Motions to Strike. If the court determines
that the award is appropriate, it must provide findings of fact
and conclusions of law to support its decision.

20170551-CA 26 2018 UT App 167