Monaco Apartment Homes v. Figueroa

2021 UT App 50
THE UTAH COURT OF APPEALS
M ONACO A PARTMENT HOMES,
Appellant,
v.
PEDRO F IGUEROA,
Appellee.
HERITAGE G ARDEN A PARTMENTS,
Appellant,
v.
JADE N. C ARRICK,
Appellee.
Opinion
No. 20200462-CA
Filed April 29, 2021
Third District Court, Salt Lake Department
The Honorable Laura Scott
Nos. 180908952 & 190904940
Kirk A. Cullimore and David R. Todd,
Attorneys for Appellants
Pedro Figueroa, Appellee Pro Se
Jade N. Carrick, Appellee Pro Se
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGE DIANA HAGEN and S ENIOR JUDGE K ATE A PPLEBY
concurred.1
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

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MORTENSEN, Judge:
¶1 	Appellants—two landlords in this consolidated appeal—
filed eviction actions. 	In each case, the landlord reached a
settlement agreement with the respective tenant that resulted in
the execution of a stipulation and a confession of judgment.
When each tenant breached the stipulation, each respective
landlord 	filed 	the 	confession 	of 	judgment, 	sought 	its
enforcement, and requested attorney fees and damages for lost
rent. The district court reduced the amount of attorney fees the
parties 	had 	agreed 	to 	in 	the 	stipulations 	and 	denied 	the
additional rent requests. The landlords appealed, claiming that
the court had abused its discretion in reducing fees rather than
enforcing 	the 	parties’ 	stipulations 	and 	that 	the 	court 	had
misapplied 	the 	law 	by 	requiring 	additional 	evidence 	of
mitigation 	to 	support 	future 	rent 	requests. 	We 	vacate 	the
judgments and remand for further proceedings.
BACKGROUND2
¶2 	After entering into an apartment lease agreement, Tenant
failed to pay rent according to the lease terms. Upon this breach
and following the commencement of eviction proceedings, but
before the lease term expired, Landlord and Tenant entered into
a 	stipulated 	payment 	plan 	and 	confession 	of 	judgment
(Stipulation and Judgment). In the Stipulation and Judgment, to
prevent 	immediate 	eviction, 	Tenant 	expressly 	agreed 	to 	a
judgment comprising various fees and assessments, including
$920 in attorney fees, and additional attorney fees and other
penalties in the event of a breach. When Tenant breached the
2. These cases come before us as a consolidated appeal. As such,
the recited background and our ruling fully apply to each
individual case. Thus, we refer to the parties in singular form
calling Appellants “Landlord” and Appellees “Tenant.”

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Stipulation and Judgment’s terms by failing to make the agreed
upon payments, Landlord filed the Stipulation and Judgment,
sought to enforce the settlement, and accordingly requested
attorney fees and future rent.
¶3 	Landlord moved for attorney fees under Utah Rule of
Civil Procedure 73 based on Utah Code section 78B-6-811(5) and
the 	Stipulation 	and 	Judgment. 	In 	the 	motion, 	Landlord
explained that the fees were reasonable based on time spent,
market rates, and the attorney’s expertise in the field. Landlord
also clarified that, because of the attorney’s expertise in the field,
the fees requested did not “include any superfluous time for
researching statutes[,] 	case law, procedure or process.” The
motion also included an affidavit detailing the work provided,
the time spent on that work, and the position and hourly rate of
the person performing the work.
¶4 	In requesting future rent as part of a proposed order,
Landlord 	submitted 	a 	supporting 	affidavit. 	The 	affidavit
detailed Landlord’s efforts to mitigate damages—including that
Landlord had “prepared the unit to re-rent,” put the “unit in its
pool of available rentals,” and “advertised all rentals available to
rent, including [the apartment at issue], through various media.”
¶5 	The district court reduced the entire request for attorney
fees 	to 	$350, 	notwithstanding 	the 	$920 	agreed 	to 	in 	the
Stipulation and Judgment. Further, the court declined to award
future rent. Its entire ruling stated,
The 	court 	declines 	to 	award 	[Landlord] 	the
$942.50 [3] fee requested because [Landlord]’s form
3. 	Despite 	reviewing 	the 	record, 	we 	have 	been 	unable 	to
determine an understandable reason for the $22.50 difference
between the $920.00 agreed to in the Stipulation and Judgment
and the $942.50 actually requested on motion.

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affidavit does not comply with Rule 73. In the
absence 	of 	an 	individualized 	showing 	of
reasonableness, the court is left with two options:
decline to award fees or award fees pursuant to the
schedule. The court exercises the latter option in
this case and awards $350.
The 	court 	also 	declines 	to 	award 	future 	rent
because [Landlord]’s signing of The Law Offices of
Kirk 	A. 	Cullimore 	L.L.C.’s 	form 	mitigation
affidavit 	is 	not 	sufficient 	to 	establish 	that 	this
[Landlord] mitigated its damages in this case.
Landlord appeals.
ISSUES AND STANDARDS OF REVIEW
¶6 	Landlord 	contends 	that 	the 	district 	court 	abused 	its
discretion in failing to enforce the Stipulation and Judgment, and
as part of this contention, argues that the court also abused its
discretion in reducing attorney fees via rule 73’s fee schedule
without explaining the reduction’s justification. “[E]nforcement
of a settlement agreement is reviewed for abuse of discretion.”
McKelvey v. Hamilton, 2009 UT App 126, ¶ 17, 211 P.3d 390. And
a 	district 	court 	“has 	broad 	discretion 	in 	determining 	what
constitutes 	a 	reasonable 	fee, 	and 	we 	will 	consider 	that
determination against an abuse-of-discretion standard.” Jensen v.
Sawyers, 2005 UT 81, ¶ 127, 130 P.3d 325 (cleaned up). Although
an abuse of discretion review is deferential, “[a]n award of
attorneys fees must generally be made on the basis of findings of
fact supported by the evidence and appropriate conclusions of
law,” Cabrera v. Cottrell, 694 P.2d 622, 624 (Utah 1985), and “[a]n
award based on insufficient factual findings is an abuse of
discretion and requires remand,” Dahl v. Dahl, 2015 UT 79, ¶ 168,
459 P.3d 276; accord Dixie State Bank v. Bracken, 764 P.2d 985, 988–
89 (Utah 1988). Specifically, “where the inadequacy of the trial

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court’s findings of fact and conclusions of law results in our
inability to ascertain the basis of the trial court's decision, [we
are] 	prevented 	from 	effectively 	reviewing 	the 	trial 	court’s
decision 	and 	may 	remand 	for 	the 	entry 	of 	more-detailed
findings.” Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011
UT App 188, ¶ 12, 257 P.3d 1073.
¶7 	Landlord 	further 	contends 	that 	the 	district 	court
incorrectly applied the law with respect to future rent, arguing
that Landlord fulfilled the obligation to mitigate future damages,
and, regardless, the court inappropriately raised the issue of
mitigation 	sua 	sponte. 	“We 	review 	application 	of 	law 	for
correctness.” AWINC Corp. v. Simonsen, 2005 UT App 168, ¶ 8,
112 P.3d 1228.
ANALYSIS
I. Attorney Fees Request
¶8 	Landlord 	contends 	that 	the 	district 	court 	abused 	its
discretion in reducing attorney fees because, by entering into the
Stipulation and Judgment, Tenant had already contracted to pay
the attorney fees requested. Additionally, Landlord contends
that in reducing the award of attorney fees, the court failed to
make factual findings necessary to support its determination.
¶9 	As outlined above, Tenant had already stipulated to a
payment schedule and confessed judgment in the case, but the
district 	court 	did 	not 	acknowledge 	the 	Stipulation 	and
Judgment. However, “a settlement between parties to a lawsuit
is a contract like any other contract, which may be freely entered
into and which a court, absent a demonstration of fraud or other
compelling circumstances, should honor and enforce as it does
other contracts.” Impink ex rel. Baldi v. Reynes, 935 A.2d 808, 812
(N.J. Super. Ct. App. Div. 2007) (cleaned up); see also Mascaro v.
Davis, 741 P.2d 938, 942 (Utah 1987) (clarifying that a settlement

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agreement 	is 	“a 	valid 	enforceable 	contract” 	(cleaned 	up));
McKelvey v. Hamilton, 2009 UT App 126, ¶ 17, 211 P.3d 390
(characterizing the question of whether the parties had entered
into a settlement agreement as an inquiry about the “existence of
a contract” that was enforceable). Accordingly, “basic contract
principles 	affect 	the 	determination 	of 	when 	a 	settlement
agreement should be so enforced.” Mascaro, 741 P.2d at 942; see
also LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867
(“Settlement agreements are governed by the rules applied to
general contract actions.” (cleaned up)).
¶10 	Parties 	“are 	entitled 	to 	contract 	on 	their 	own 	terms
without the intervention of the courts to relieve either party from
the effects of a bad bargain. [The] court will not rewrite a
contract to supply terms which the parties omitted.” Hal Taylor
Assocs. v. Unionamerica, Inc., 657 P.2d 	743, 749 (Utah 1982)
(cleaned up). Further, the “court cannot rewrite the contract
because [a party] failed to include language to protect [its]
rights.” Palmer v. Davis, 808 P.2d 128, 132 (Utah Ct. App. 1991).
Instead, when faced with an enforceable agreement, the court is
“not presented with a choice between alternative remedies . . .
[and] is [not] empowered to rewrite the settlement agreed upon
by the parties.” Officers for Justice v. Civil Service Comm'n, 688
F.2d 615, 630 (9th Cir. 1982). Put simply, “the settlement must
stand or fall as a whole,” and the court “may not delete, modify,
or substitute certain provisions.” Id.
¶11 	And quite specific to this case, “[i]f the legal right to
attorney fees is established by contract, Utah law clearly requires
the court to apply the contractual attorney fee provision and to
do so strictly in accordance with the contract’s terms.” Jones v.
Riche, 2009 UT App 196, ¶ 2, 216 P.3d 357. In Jones, the parties’
contract required that the defaulting party pay attorney fees, but
instead of looking to the contract and simply awarding fees to
the non-defaulting party, the district court looked to statute and
case law “interpreting the terms ‘successful party’ or ‘prevailing

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party’” and awarded fees to the defaulting party. Id. ¶¶ 3–4. But,
as we noted in that case,
Attorney 	fee 	provisions 	should 	ordinarily 	be
honored by the courts and attorney fees awarded
in 	accordance 	with 	the 	terms 	of 	the 	parties’
agreement, and . . . when the legal right to attorney
fees is contractual, the court does not possess the
same equitable discretion to deny attorney fees that
it 	has 	when 	fashioning 	equitable 	remedies, 	or
applying a statute which allows the discretionary
award of such fees.
Id. ¶ 2 (cleaned up). Accordingly, we held that the district court’s
approach 	“was 	not 	warranted 	because 	this 	approach
contradicted the clear contractual language that created the right
to attorney fees in [the] case.” Id. ¶ 4; see also Softsolutions, Inc. v.
Brigham Young Univ., 2000 UT 46, ¶ 41, 1 P.3d 1095 (“If a contract
provides 	for 	attorney 	fees, 	the 	award 	is 	allowed 	only 	in
accordance with the terms of the contract.” (cleaned up)); Cobabe
v. Crawford, 780 P.2d 834, 836 (Utah Ct. App. 1989) (rejecting the
idea 	that 	in 	the 	face 	of 	an 	enforceable 	and 	unambiguous
contract, 	the 	district 	court 	can 	nevertheless 	“exercise 	its
discretion to make no award of fees”).
¶12 	Here, the Stipulation and Judgment not only required
payment of certain attorney fees but also provided for additional
attorney 	fees 	in 	the 	event 	of 	a 	breach. 	Additionally, 	the
Stipulation and Judgment allowed for more attorney fees than
Landlord 	requested 	when 	seeking 	its 	enforcement. 	And 	as
noted, in determining fees the district court did not acknowledge
nor explain why the Stipulation and Judgment did not bind its
decision. 	Absent 	some 	explanation 	of 	which 	contract 	law
principles rendered the Stipulation and Judgment unenforceable,
the district court cannot have exercised proper discretion in
failing to enforce the parties’ Stipulation and Judgment.

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As a result, we are unable to engage in an effective
review of the issues raised by this appeal without
further explanation from the [district] court. Where
our appellate function cannot be performed due to
the inadequacy of the [district] court’s decision, we
may remand for the entry of additional findings of
fact and conclusions of law explaining the legal
basis of its decision and showing that the evidence
supports that conclusion.
Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App
188, ¶ 16, 257 P.3d 1073.
¶13 	Therefore, we remand for the court to award the full
request 	for 	attorney 	fees 	in 	line 	with 	the 	Stipulation 	and
Judgment, “unless the court identifies a proper legal basis for”
refusing to enforce the Stipulation and Judgment. See Martindale
v. Adams, 777 P.2d 514, 518 (Utah Ct. App. 1989); see also Veracity
Networks LLC v. MCG S. LLC, 2019 UT App 53, ¶¶ 34–37, 440
P.3d 906.
II. Future Rent Request
¶14 	Landlord also contends that the district court misapplied
the law in refusing to award future rent, arguing that the court
demanded more mitigation efforts than the law requires and that
Landlord’s 	mitigation 	efforts 	complied 	with 	the 	law’s
requirements.
¶15 	The seminal Utah case governing future rent awards is
Reid v. Mutual of Omaha Insurance Co., 776 P.2d 896 (Utah 1989).
In Reid, our supreme court held that “a landlord who seeks to
hold a breaching tenant liable for unpaid rents has an obligation
to take commercially reasonable steps to mitigate its losses,
which ordinarily means that the landlord must seek to relet the
premises.” Id. at 906. It is true that mitigation is generally an
affirmative defense, which only a defendant can raise. But in

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Reid, 	the 	court 	explained 	“the 	affirmative 	nature 	of 	the
mitigation obligation” in the landlord/tenant context, providing
that a landlord seeking future rent actually bears an “affirmative
. 	. 	. 	mitigation 	obligation” 	and 	must 	“carry 	its 	proof-of-
mitigation 	burden” 	by 	“tak[ing] 	positive 	steps 	reasonably
calculated to effect a reletting of the premises.” Id. The court
went on to explain that “the standard by which a landlord’s
efforts to mitigate are to be measured” is “objective commercial
reasonableness,” which requires a landlord “to take such steps
as would be expected of a reasonable landlord letting out a
similar property in the same market conditions.” Id. at 906–07.
Whether a landlord has pursued mitigation efforts with objective
commercial reasonableness “is a fact question that depends
heavily on the particularities of the property and the relevant
market at the pertinent point in time.” Id. at 907; see also Tech
Center 2000, LLC v. Zrii, LLC, 2015 UT App 281, ¶ 22, 363 P.3d
566.
¶16 	Here, 	Landlord 	first 	provided 	the 	district 	court 	an
affidavit 	indicating 	awareness 	of 	the 	affirmative 	duty 	to
mitigate. 	Landlord 	also 	documented 	mitigation 	efforts,
including “prepar[ing] the unit to re-rent”; putting the “unit in
its 	pool 	of 	available 	rentals”; 	and 	“advertis[ing] 	all 	rentals
available to rent, including [the apartment at issue], through
various media.” In response, the court stated that Landlord’s
“form mitigation affidavit [was] not sufficient to establish that
[Landlord] 	mitigated 	its 	damages 	in 	this 	case.” 	The 	court
provided 	no 	explanation 	as 	to 	how 	it 	found 	Landlord’s
mitigation efforts wanting, and although we can speculate as to
why the court found at least one of the affidavits insufficient,
without more explanation from the court, we cannot affirm
based on bare supposition.
¶17 	Thus, 	without 	deciding 	whether 	the 	district 	court
misapplied 	the 	relevant 	law, 	we 	remand 	“for 	the 	entry 	of
additional findings of fact and conclusions of law explaining the

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legal 	basis 	of 	its 	decision 	and 	showing 	that 	the 	evidence
supports that conclusion.” Interstate Income Props., Inc. v. La Jolla
Loans, Inc., 2011 UT App 188, ¶ 16, 257 P.3d 1073.
CONCLUSION
¶18 	On the record before us, the district court either failed to
award attorney fees in line with the Stipulation and Judgment or
failed to sufficiently explain a proper legal basis for refusing to
enforce that settlement agreement. Therefore, we remand with
instructions to award attorney fees according to the Stipulation
and Judgment unless the court articulates a valid legal basis for
rendering 	the 	contract 	unenforceable. 	Further, 	because 	the
district court did not explain the basis of its future rent decision,
we cannot effectively review the issues presented. We therefore
remand for the court to enter additional findings of fact and
conclusions of law explaining the factual and legal basis of that
decision.
¶19 	Vacated and remanded.