2013 UT App 20
_________________________________________________________
THE UTAH COURT OF APPEALS
OSMOND LANE HOMEOWNERS ASSOCIATION,
Plaintiff and Appellee,
v.
GEORGE C. LANDRITH JR.,
Defendant and Appellant.
Opinion
No. 20090157‐CA
Filed January 25, 2013
Fourth District, Provo Department
The Honorable Lynn W. Davis
No. 060400414
Russell A. Cline, Attorney for Appellant
Thomas W. Seiler and Aaron D. Lancaster, Attorneys for
Appellee
JUDGE GREGORY K. ORME authored this Opinion,
in which JUDGES WILLIAM A. THORNE JR.
and J. FREDERIC VOROS JR. concurred.
ORME, Judge:
¶1 Among other issues, George C. Landrith Jr. appeals the trial
court’s denial of his motion for summary judgment and its grant of
partial summary judgment in favor of the Osmond Lane Home‐
owners Association. Additionally, Landrith appeals the trial court’s
grant of the Association’s motion for a directed verdict on several
of his defenses. We affirm.
Osmond Lane Homeowners v. Landrith
BACKGROUND
¶2 In 1977, a Declaration of Protective Covenants (the Declara‐
tion) was recorded against all lots in the George Osmond Estates
Subdivision (the Subdivision) in Provo, Utah. The Declaration
contemplated the organization at a future date of the “George
Osmond Estates Council,” a nonprofit corporation that would be
authorized pursuant to the Declaration “to provide certain facilities
and services” to the Subdivision, its inhabitants, and its visitors.1
1. Section 6.2 of the Declaration authorizes the Council to levy
general maintenance assessments to promote “the health, safety,
and welfare of the [Subdivision] residents” and to improve and
maintain the common area. In particular, these assessments may be
used to pay for taxes and insurance; for “general maintenance,
repair, replacement, and additions” to the common area; and for
“the cost of labor, equipment, materials, management, and
supervision” related to maintenance of the common area, but no
assessments may ever be used for capital improvements unless
approved by a vote of two‐thirds of Council members.
Section 6.4 of the Declaration reiterates that the Council may
levy special assessments for capital improvements to the common
area, in addition to the Council’s authority to collect general
maintenance assessments under Section 6.2. Such special
assessments are intended to “defray[], in whole or in part, the cost
of any construction or reconstruction, unexpected repair or
replacement of any capital improvements upon the Common Area,
. . . provided that any [special] assessment shall have the assent of
two‐thirds” of Council members. (Emphasis in original.)
Section 6.11 of the Declaration empowers the Council to
“provide exterior maintenance upon each Parcel which is subject
to assessment,” including the authority to “paint, repair, replace
and care for roofs, gutters, downspouts, exterior building surfaces,
trees, shrubs, grass[,] walks, and other exterior improvements.”
The Council’s authorization to provide exterior maintenance,
(continued...)
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Osmond Lane Homeowners v. Landrith
No entity by the name of the “George Osmond Estates Council”
was ever organized.
¶3 In 1979, an unincorporated nonprofit association called the
“Osmond Lane Homeowners Association” (the Association)
commenced acting as the governing body in the Subdivision,
conducting neighborhood meetings, resolving community
concerns, collecting dues and assessments,2 maintaining common
areas, and paying common expenses. Although the Association’s
governance was somewhat different from the contemplated
“George Osmond Estates Council” (the Council), the Association
conducts regular meetings and elects a president and a board of
directors from among the Subdivision property owners. However,
while the Declaration contemplated two semi‐annual payments
from Subdivision property owners to the Council for “annual
assessments,” the Association requires annual assessments to be
paid in full once yearly. Moreover, the Association collects unpaid
homeowner association fees by filing mechanics’ liens rather than
the “continuing lien[s]” contemplated by the Declaration.
1. (...continued)
however, is tempered by Section 3.3 of the Declaration, which
cautions that
no . . . fence, wall, or other improvements that are not
already located on such property shall be
constructed, erected or maintained, nor shall any
additions thereto, or alteration therein, be made until
plans and specifications . . . shall have been
submitted to and approved by the [George Osmond
Estates Architectural and Planning Control] Board in
writing.
2. Indeed, in a September 2002 district court action, the Association
was recognized as the appropriate entity to collect annual dues in
the Subdivision.
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Osmond Lane Homeowners v. Landrith
¶4 In 1992, Landrith purchased a home (the Property), which
is located within the Subdivision. From the time of purchase until
he sold the Property in 2007, Landrith paid annual dues to the
Association to cover his share of the common expenses within the
Subdivision.
¶5 At some point during Landrith’s first two years in the home,
an irrigation pipe froze and broke, causing water to flood the
backyard and ultimately erode a hole at the Property’s rear border,
which runs along the top of a deep ravine. Over the next ten years,
multiple sprinkler breaks and leaks permitted water to further
erode the area, thus increasing the size of the hole. Beginning in
1998, the Association repeatedly requested that Landrith address
the erosion in the southeast corner of the Property by “filling the
hole with dirt.” Landrith believed that the eroded area was merely
an element of the ravine’s rough terrain and, therefore, he refused
to comply with the Association’s request that he fill the hole.
¶6 In 2003, the Association sent Landrith a letter, expressing
concern about the hole on the Property and reminding him of the
Association’s repeated requests over the previous five years that he
remedy the eroded area. During that same year, Landrith vacated
the Property; moved to Bountiful, Utah; and, apparently, left the
Property unattended. After moving, Landrith notified Nevan
Anderson, then president of the Association, of his intention to sell
the Property. Still in 2003, Landrith and Anderson engaged in
discussions regarding the erosion and the hole, with Anderson
stressing that the problem had to be fixed.
¶7 Finally, in June 2004, Anderson informed Landrith that the
hole on the Property needed to be fixed within two months. A
month later, when Anderson and Landrith met with an independ‐
ent contractor to discuss potential solutions for the eroded area,
Anderson told Landrith that Landrith’s belated plan of “filling [the
hole] with dirt was no longer acceptable.” Days later, Landrith
listed the Property for sale “as is” with a real estate agent. In
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Osmond Lane Homeowners v. Landrith
August 2004, Anderson advised Landrith that a permit and
engineering services would be necessary to fix the eroded area, and
in November 2004, Anderson contacted and contracted with
Earthtec, an engineering firm, to remedy the erosion issues.
¶8 Over time, the Property’s soil beneath a set of concrete stairs
and an existing railroad tie retaining wall at the rear of the Property
had eroded to the point that the Association and neighbors became
concerned with the safety of the area for children, the structural
integrity of a neighbor’s adjacent retaining wall, and the value of
surrounding properties. Based on these concerns and without
Landrith’s knowledge or consent, the Association paid Earthtec in
excess of $32,000 to construct two retaining walls along the
southeast corner of the Property.
¶9 According to Earthtec’s studies, the soil conditions on the
Property would be subject to continued erosion, and therefore,
Earthtec submitted plans to the Association for the construction of
an interlocking block retaining wall system and corresponding
drainage system. The Association never actually approved, in
writing, the plans provided by Earthtec. Nevertheless, Earthtec
retained CKR Engineers to design plans for the retaining walls, and
the Association retained Interlock Paving to construct the walls as
called for in the Earthtec plans. The construction involved exten‐
sive work on the Property, including the erecting of a ramp along
the side of the Property to permit heavy construction equipment to
access the rear portion of the Property. Following the construction
of the interlocking block walls, the Association paid Earthtec, CKR
Engineers, and Interlock Paving for their services, and then billed
Landrith for reimbursement of the more than $32,000 cost.3
Landrith did not pay the bill or even respond to the Association’s
invoice.
3. In addition to sending Landrith an invoice upon final completion
of the retaining walls, the Association had previously sent Landrith
an invoice for the partial completion of the retaining walls.
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Osmond Lane Homeowners v. Landrith
¶10 Subsequently, in January 2006, the Association filed a Notice
of Lien against the Property for expenses incurred in constructing
the walls and claiming an intent to “hold and claim a lien pursuant
to the Declaration.” The Association later filed a complaint in
district court, seeking to foreclose on the Property. Landrith filed
a motion for summary judgment, arguing that the Association was
not authorized to act under the Declaration. The court denied
Landrith’s motion, stating that Landrith had ratified the Associa‐
tion’s authority to act in the stead of the Council.
¶11 Thereafter, the Association filed its own motion for sum‐
mary judgment with respect to the issue of whether it was autho‐
rized to act as the Council under the Declaration. The court granted
the Association’s motion for partial summary judgment, again
stating that Landrith ratified the Association’s authority to act with
the authority initially envisioned for the Council.
¶12 The litigation ultimately culminated in a jury trial. At trial,
Landrith tried to present evidence through the use of an expert
witness to show the existence of much less expensive alternatives
to an interlocking block retaining wall system. The Association,
however, objected to the testimony of Landrith’s expert on grounds
of relevance and qualification under rule 702 of the Utah Rules of
Evidence. The court granted the Association’s objection on both
grounds.
¶13 At the conclusion of trial, the Association moved for a
directed verdict as to Landrith’s defenses that the Association
failed to mitigate its damages, materially breached the Declaration,
waived its right to recover the cost of the walls from Landrith, and
breached the implied covenant of good faith and fair dealing. The
trial court granted the Association’s motion as to all four of
Landrith’s defenses. Subsequently, the jury returned a verdict in
favor of the Association, awarding it more than $33,000 in dam‐
ages. Additionally, the Association was awarded prejudgment
interest and attorney fees. Landrith appeals.
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Osmond Lane Homeowners v. Landrith
ISSUES AND STANDARDS OF REVIEW
¶14 Landrith’s appeal focuses on two principal issues. He argues
that the trial court erred in denying his motion for summary
judgment and in granting the Association’s competing motion for
summary judgment regarding whether the Association was
authorized to act as the Council pursuant to the Declaration. “We
review the district court’s decision to grant summary judgment for
correctness, granting no deference to the [district] court.” Swan
Creek Vill. Homeowners Ass’n v. Warne, 2006 UT 22, ¶ 16, 134 P.3d
1122 (alteration in original) (citation and internal quotation marks
omitted). “[S]ummary judgment is appropriate only when there is
no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” Id. (citation and internal
quotation marks omitted). See Utah R. Civ. P. 56(c).
¶15 Landrith also claims that the trial court erred by granting the
Association’s motion for directed verdict as to Landrith’s various
defenses. “We review a trial court’s grant of directed verdict for
correctness. For a directed verdict to be appropriate, the evidence
must be such that reasonable minds could not differ on the facts
based on the evidence presented at trial.” Goebel v. Salt Lake City S.
R.R. Co., 2004 UT 80, ¶ 10, 104 P.3d 1185 (citations omitted).
ANALYSIS
I. Summary Judgment
¶16 We agree with the Association that the trial court did not err
in denying Landrith’s motion for summary judgment and in
granting the Association’s competing motion for partial summary
judgment. On appeal, both parties addressed the Utah Supreme
Court’s decision in Swan Creek Village Homeowners Ass’n v. Warne,
2006 UT 22, 134 P.3d 1122. We are unpersuaded by Landrith’s
attempts to distinguish Swan Creek from the case before us.
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Osmond Lane Homeowners v. Landrith
¶17 In Swan Creek, after a development’s original homeowners
association was dissolved for its failure to file an annual report and
pay the corresponding filing fee, a new homeowners association
was incorporated and began to act. See id. ¶¶ 2–5. An individual
who acquired property in the development subsequent to the
formation of the new homeowners association refused to pay a
special assessment levied by the new homeowners association,
which, in turn, brought suit against the property owner to collect
the assessment. See id. ¶¶ 6–11. The Utah Supreme Court stated
that “[w]here property owners have treated an association as one
with authority to govern and impose assessments contemplated
under the terms of a duly recorded governing declaration, they
ratify its authority to act.” Id. ¶ 32. In reaching its decision, the
Supreme Court relied on the facts that the new homeowners
association had acted as such for twenty years, in which time no
competing association emerged; lot owners collectively accepted
the new homeowners association’s management and paid dues to
it; the new homeowners association’s authority to collect assess‐
ments was upheld in a prior court action; and the new homeown‐
ers association’s articles of incorporation and governing declaration
were on file for years before the new owner acquired the property.
See id. ¶ 38. Based on those facts, the Court exercised its “equitable
power to hold that the [new homeowners association] possesses the
authority delegated to the homeowners association by the
[d]eclaration.” Id. ¶ 39.
¶18 Here, we see no error in the trial court’s analysis of, and
application of the facts at hand to the rule set forth in, Swan Creek.
First, it is undisputed that Subdivision property owners have
regarded the Association as having “authority to govern and
impose assessments contemplated under the terms of [the Declara‐
tion].” See id. ¶ 32. It is also undisputed that property owners in the
Subdivision, including Landrith, have consistently paid dues to the
Association. Landrith himself has repeatedly paid annual fees,
special fees, and assessments for repairs and maintenance under‐
taken by the Association. Moreover, the Association has been
operating and has undertaken property management responsibili‐
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Osmond Lane Homeowners v. Landrith
ties pursuant to the terms of the Declaration for some thirty years.
In that time, no competing association has emerged and the
Association has been judicially recognized as authorized to levy
assessments. Finally, the Declaration under which the Association
purported to act was recorded many years prior to Landrith
acquiring property in the Subdivision. We conclude that these
facts, in particular the “pattern of acquiescence by the lot owners,”
place this case squarely within the reasoning articulated in Swan
Creek. See id. ¶ 39. Thus, we see no error in the trial court’s decision,
and we “exercise our equitable power to hold that the [Association]
possesses the authority delegated to the [Council] by the Declara‐
tion.” See id. Therefore, as to the trial court’s decision granting the
Association summary judgment with respect to whether it had
authority to act as the Council pursuant to the Declaration, we
affirm.
II. Directed Verdict
¶19 Having determined that the Association could properly
exercise the powers granted to the Council by the Declaration, we
next turn to the Declaration itself. Specifically, we address
Landrith’s argument that the Association materially breached the
Declaration and, on that basis in particular, that the trial court erred
in granting the Association’s motion for directed verdict. We begin
by emphasizing that the Association is a creature of contract,
empowered as a governing body of homeowners to serve the
Subdivision through powers specifically enumerated in the
Declaration. Such powers, however, are qualified and restricted by
the Declaration’s provisions and limitations. Thus, the Declaration
entitles the Association to freely make repairs and undertake
exterior maintenance even to individually owned units, but
restricts the authority to undertake capital improvements to the
common area. It is undisputed that the retaining walls were
constructed on Landrith’s property, not the common area. Thus,
the provisions authorizing the Association to undertake capital
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Osmond Lane Homeowners v. Landrith
improvements are not applicable.4 Accordingly, we focus on the
Association’s authority to undertake projects that qualify as repairs
or maintenance.
¶20 The Association is authorized to conduct exterior
maintenance on individual units and the common area, with the
costs being recouped through the assessment process.5 Thus,
Landrith is entirely correct that if construction of the retaining
walls was not an act of repair or maintenance, the Association
lacked the authority to have them built.
¶21 Consideration of the Declaration’s provisions, several of
which are summarized in footnote 1 of this opinion, convinces us
that the decision of whether to classify the Association’s
construction of new retaining walls as a repair or maintenance is,
as Landrith insists, a question that properly should have gone to
the jury. Section 6.11 states that “[i]n addition to maintenance upon
the Common Area, the Council may provide exterior maintenance
upon each Parcel which is subject to assessment . . . as follows:
paint, repair, replace and care for roofs, gutters, downspouts,
exterior building surfaces, trees, shrubs, grass[,] walks, and other
exterior improvements.” (Emphasis added.)
¶22 As noted, the Association may justify its actions in
constructing retaining walls on Landrith’s property only if they
4. It follows that there was no error in the trial court’s rejection of
Landrith’s proposed jury instruction defining “capital
improvement.”
5. Section 6.11 of the Declaration states that “[i]n addition to
maintenance upon the Common Area, the Council may provide
exterior maintenance upon each Parcel[.]” Moreover, Section 6.12
explains that “[t]he cost of such exterior maintenance shall be
assessed against the Parcel upon which such maintenance is done
and shall be added to and become a part of the annual
assessment[.]”
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Osmond Lane Homeowners v. Landrith
constitute a “repair” or “other exterior improvements” under
Section 6.11. Landrith argues that the installation of new
interlocking block retaining walls goes beyond the definition of a
“repair.” See Webster’s Third New Int’l Dictionary 1923 (1993)
(defining “repair” as “to restore by replacing a part or putting
together what is torn or broken”). But the question remains
whether construction of the retaining walls falls under “other
exterior improvements” as that term is used in Section 6.11. The
term “other exterior improvements” in Section 6.11 is, seemingly,
a catchall phrase for any other maintenance the Association may
provide, in addition to “paint, repair, replace and care for roofs,
gutters, downspouts, exterior building surfaces, trees, shrubs,
grass[, and] walks.”6 As with statutory construction, words in a
contract must “be interpreted according to their plain meaning
unless the context justifies a different interpretation.” State v.
Serpente, 768 P.2d 994, 997 (Utah. Ct. App. 1989). The words “other
exterior maintenance” are
not subject to a plain meaning, but rather must [be
interpreted] from the context in which [they]
appear[]. To this end, we resort to the doctrine of
ejusdem generis. This doctrine provides that “where
general words follow the enumeration of particular
classes of things, the general words will be construed
as applying only to things of the same general class
as those enumerated.”
Id. (quoting Black’s Law Dictionary 464 (5th ed. 1979)).
¶23 Landrith argues that the construction of retaining walls,
which required the use of heavy equipment, multiple workers, and
substantial expense, is not maintenance of the same caliber and
quality as such things as painting or caring for trees and
6. We see no error in the trial court’s refusal to instruct the jury on
the meaning of “repair,” “improvement,” and “replace.” These are
common terms well within the understanding of typical jurors.
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Osmond Lane Homeowners v. Landrith
shrubs—simple tasks that may typically be accomplished by one
worker with hand tools. But Section 6.11 is not limited to such
minor work. The references in Section 6.11 to roof repair and,
indeed, roof replacement suggest that not all acts of repair or
maintenance will be as minor as Landrith contends. Thus, a jury
question was properly presented as to whether the Association’s
actions qualified as exterior maintenance under Section 6.11.
Landrith concedes as much, of course, in arguing that the directed
verdict was not in order. We agree with Landrith that a question
for the jury was presented, but we disagree that the jury’s
consideration of his theory was foreclosed by the trial court’s
directed verdict. Careful consideration of the record demonstrates
that this issue was presented to and decided by the jury
notwithstanding the partial directed verdict.
¶24 At the close of evidence, the trial court granted the
Association’s motion for directed verdict on several issues. One
aspect of the trial court’s ruling precluded Landrith from arguing
that the Association’s replacement of an inadequate retaining wall
on his property with two new retaining walls constituted a capital
improvement in violation of the Declaration. As indicated
previously, this ruling was proper because the walls were
constructed on Landrith’s property, not on the common area,
making the capital improvement provisions inapplicable. The
directed verdict, however, did not preclude the jury from
considering whether the retaining wall project constituted exterior
maintenance authorized under Section 6.11. To the contrary, the
trial court expressly allowed Landrith to argue that the
Associationʹs actions did not constitute exterior maintenance:
[LANDRITH’S COUNSEL]: Have you ruled that this
is general maintenance, or can I argue that that’s
not—this is not general maintenance?
THE COURT: Well, you can argue that he didn’t
breach, and you can argue, I guess, that this is not
general maintenance.
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Osmond Lane Homeowners v. Landrith
[LANDRITH’S COUNSEL]: Thank you.
[THE ASSOCIATION’S COUNSEL]: But it’s not
capital improvements. He can’t argue that.
THE COURT: It’s not capital improvements.
¶25 The parties then proceeded to make closing arguments,
during which both Landrith’s and the Association’s counsel argued
their respective positions on whether the Association’s actions were
permissible as exterior maintenance under Section 6.11. The
Association’s counsel referred the jury to Section 6.11 and argued
that Section 6.11 “lists a bunch of things. The ones that truly apply
in our case are repair and replace a whole bunch of things,
including exterior improvements. You remember, there’s a number
of pictures that show the old retaining wall. What are we doing but
replacing retaining walls?”
¶26 In his closing argument, Landrith’s counsel specifically
asked the jury to “circle [Section] 6.11, take a look at it, because
that’s the deal that youʹll be looking at,” and then argued that the
Association’s actions were not authorized as exterior maintenance
under Section 6.11. Landrith’s counsel urged the jury to find that
construction of the new retaining walls did not constitute exterior
maintenance because of the size of the “two huge walls,” and
distinguished the scope of the Association’s project from the other
items listed in Section 6.11. At the conclusion of his closing
argument, Landrith’s counsel again invoked Section 6.11 as
controlling the juryʹs award of damages:
[S]hould you have to pay that? Well, what was the
agreement that you made? Go back and take a look
at [Section] 6.11, and I ask you—I think itʹs the right
thing to do. . . .
Before you enter a single dollar in [the
Association’s] favor, make sure you’ve read [Section]
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Osmond Lane Homeowners v. Landrith
6.11 and agree that what they did was part of the
deal that was made between Mr. Landrith and the
[Association]. It was not. It’s not even close. This
kind of thing, you just can’t have somebody coming
onto your property and building something like this
without your permission and consent under the
guise of maintenance, and turning around and billing
you $32,800.
¶27 The case went to the jury with a Special Verdict form
containing five questions. In answering the third and fourth
questions,7 the jury found unanimously that “[the] Association was
entitled to provide exterior maintenance upon the George Landrith,
Jr. lot as follows: paint, repair, replace and care for roofs, gutters,
down spouts, exterior building surfaces, trees, shrubs, grass[,]
walks, and other exterior improvements” and that “[the]
Association repaired the damage caused by erosion . . . by
contracting with various entities to replace the railroad tie retaining
wall with new retaining walls.” The fifth question asked the
amount of damages to be awarded, which the jury answered in the
exact amount claimed by the Association, $33,143.62. Thus, in a
Special Verdict patterned nearly word for word on Section 6.11, the
jury found that the Association “was entitled to provide exterior
maintenance upon the [Landrith] lot,” including “repair[ing and]
replac[ing] . . . exterior improvements”; that it had “repaired the
damage caused by erosion . . . [by] replac[ing] the railroad tie
retaining wall with new retaining walls”; and that it was therefore
entitled to damages in the amount expended on the project.
7. The first two Special Verdict questions asked whether property
owners belonging to the Association had a duty to maintain their
property in good repair and whether Landrith had breached the
Declaration. The jury unanimously answered these two questions
in the affirmative.
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Osmond Lane Homeowners v. Landrith
¶28 In sum, Landrith was entitled to have this question
presented to and resolved by the jury. And notwithstanding the
partial directed verdict, it was—albeit in a manner adverse to his
position.8
III. Other Issues
¶29 Landrith raises a number of other issues in this appeal. First,
he challenges the trial court’s exclusion of his proposed expert
witness. This decision is reviewed deferentially, under an abuse of
discretion standard. See, e.g., State v. Brink, 2007 UT App 353, ¶ 4,
173 P.3d 183. We see no such abuse of discretion here. While
Landrith’s intended witness was in the business of constructing
stone walls, he was not an engineer and conceded that his company
typically needed the help of an engineer to design the walls it
builds. And he did not visit the property until after the new walls
were in place and, thus, never saw the conditions that confronted
the Association and its contractors. See Utah R. Evid. 702(b)(2)
(requiring that expert opinions be “based upon sufficient facts or
data”). Finally, he had no experience with interlocking block walls,
as were at issue in this case. Accordingly, we discern no error in the
trial court’s performance of its role as “gatekeeper” in excluding
the proposed expert’s testimony. See generally Gunn Hill Dairy
8. Other aspects of the trial court’s directed verdict are more easily
resolved. The evidence was clear that, largely because he vacated
the property, Landrith had not taken reasonable steps to mitigate
his damages by prudently dealing with the erosion problem.
Insofar as he contended that there were more economical ways for
the Association to have dealt with the problem, his case rested on
the testimony of his expert, which was excluded as hereafter
explained. Further, any breaches by the Association of certain
requirements concerning plan approval, notice to Landrith,
approval of the assessment to fund construction of the walls, and
the absence of an authorizing resolution for the construction were
not so material as to excuse Landrith’s liability for his breaches.
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Osmond Lane Homeowners v. Landrith
Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20,
¶ 16, 269 P.3d 980 (“‘The trial court has wide discretion in
determining the admissibility of expert testimony,’ and we will
disturb a court’s exclusion of expert testimony only when it
‘exceeds the limits of reasonability.’”) (quoting Eskelson v. Davis
Hosp., 2010 UT 59, ¶ 5, 242 P.3d 762).
¶30 Second, Landrith complains about the trial court’s
calculation of prejudgment interest. He has not persuaded us,
however, that there was any significant error in this regard, and the
position of the Association—that any error was actually in
Landrith’s favor—seems entirely plausible given the terms of
Section 6.8 of the Declaration, which establishes and defines a
delinquency interest rate.
¶31 Third, Landrith questions the amount of costs awarded.
Under the broad terms of rule 54(d), we are not persuaded that the
court erred in assessing the costs it did. See Utah R. Civ. P. 54(d)(1)
(providing that “costs shall be allowed as of course to the
prevailing party unless the court otherwise directs”).
¶32 Fourth, Landrith challenges the amount of attorney fees
awarded to the Association as the prevailing party.9 We see no
error with the award of fees under the principles explained in Dixie
State Bank v. Bracken, 764 P.2d 985 (Utah 1988).
IV. Fees on Appeal
¶33 The Association requests an award of its fees incurred on
appeal, and it does so in a manner compliant with our rule 24. See
Utah R. App. P. 24(a)(9) (“A party seeking to recover attorney’s
fees incurred on appeal shall state the request explicitly and set
9. Anticipating success on appeal, Landrith hoped to be
characterized as the prevailing party and sought an award of his
fees on this basis. Landrith did not prevail, below or on appeal, and
thus is not entitled to an award of his attorney fees.
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Osmond Lane Homeowners v. Landrith
forth the legal basis for such an award.”). A party who is awarded
fees below and prevails on appeal is entitled to recover its attorney
fees reasonably incurred on appeal. See Management Servs. Corp. v.
Development Assocs., 617 P.2d 406, 409 (Utah 1980). That is the case
here, and the Association is entitled to an award of the fees it
reasonably incurred on appeal.
CONCLUSION
¶34 The trial court committed no error in denying Landrith’s
motion for summary judgment and granting the Association’s
motion for summary judgment related to the Association’s
authority to act in the stead of the Council pursuant to the
Declaration. It was a question for the jury whether the
Association’s actions in constructing a retaining wall system on
Landrith’s property was a repair or other act of exterior
maintenance under the Declaration. Contrary to Landrith’s
argument, the jury’s consideration of this issue was not foreclosed
by the directed verdict, and the jury, properly instructed, decided
the issue in the Association’s favor.
¶35 We see no abuse of discretion in the trial court’s exclusion
of Landrith’s proposed expert witness. We are not convinced there
was error in the trial court’s award of prejudgment interest, taxable
costs, or attorney fees. And the Association is entitled to an award
of the fees it reasonably incurred on appeal.
¶36 The verdict and ensuing judgment are affirmed. We remand
for determination of an appropriate award of the attorney fees
incurred by the Association on appeal.
20090157‐CA 17 2013 UT App 20